Whitey Bulger’s Trial Delayed From March 6 To June 6 2013: Schedule Set For Discovery To Be Completed

Judge Stearns delayed Whitey’s trial three months.  His first sentence in his order reads: “Defendant James Bulger was a fugitive from justice for sixteen years.”  I don’t understand what that has to do with a defendant’s lawyer  having adequate time to prepare for trial.

He recognizes the “complexity of the case, . . . the uncovering of a corrupt relationship between Bulger and rogue agents of the Federal Bureau of Investigations. . . .”  (Did he say agents, plural? How come only one was charged or disciplined?) and other matters which counsel has to review.

Judge Stearns goes into the bickering that has been going on by counsel over the discovery.  Defense counsel says this, the government says the other thing including “blaming [defense] counsel’s alleged indolence.”  The government also says it has provided “all exculpatory material in has in its possession relating to each of its witnesses” which Judge Stearns says “this is a nearly unprecedented gesture by the government, one that is not required  . . . . ”

Stearns then praises Magistrate Judge Bowler “for effective stewardship”  and seconds her  observation that the government “has provided defendant’s counsel virtually everything that he as asked for. I also agree that there is a point at which the burden of preparing a defense becomes the responsiblity of defendant’s counsel and not the government.”

While admitting he refused to hire six contract attorneys to assist Carney,  Stearns pointed out he appointed Hank Brennan and three associates in Carney’s office.  He noted he gave him $40,000 for help by an outside computer firm on a motion Carney filed on May 29, 2012  that was not acted on until September 4, 2012, saying the motion  was misplaced but blaming Carney for not reminding the court of the delay.

Judge Stearns then went through each of the matters that are outstanding and placed an estimate on the time that would be necessary for all of these matters to be resolved. 90 days for additional discovery, 120 days to resolve disputes over the Protective Order, sixty days to get additional material from civil counsel.  Summing it up Stearns estimates that if his predictions are correct all outstanding discovery matters will be resolved by April of 2013,   Defendant having waived substantive motions, they have to be filed by May 3, 2013.  Jury screening will begin on June 6 and the trial will commence on June 10, 2013.

Stearns addressed the issue of immunity and agreed that in this case since it is a situation of mixed  law and fact it will have to go to the jury for certain findings of facts. He will set up a briefing schedule for counsel to follow.

Carney got a little breathing space, not much, certainly a lot less than he needed. Stearns seemed to praise the government too much and found very little positive to say about the burden on defense counsel.  Stearns’s guidelines if not followed may give Carney room to argue down the road for more time. Unfortunately, Stearns did not consider that after Carney gets all the discovery he will need time to follow-up on it with additional investigations by giving him a little over one month to do that.   Opening with the sixteen year observation as if that is relevant to the time needed by counsel to prepare a case seemed to suggest the rush is on.

The government pretty much got what it wanted.  Carney got a bare bone tossed to him.

2 replies on “Whitey Bulger’s Trial Delayed From March 6 To June 6 2013: Schedule Set For Discovery To Be Completed”

  1. The judge’s order reads much like a press release. The first line is the sound bite intended to protect Stearn’s flank from the media. The order confirms my firm belief Stearns has no balls under that robe. He is still prosecuting from the bench. Since he won’t let Carney prepare for the many issues of government misconduct underlying this case, it means he will not allow Carney to explore those issues in front of the jury. Stearns showed his hand and this trial is virtually over. He has practically precluded the entire defense. Stearns’s order today was essentially the final verdict.

    One last thing, isn’t the USA required to disclose all exculpatory information? It’s an odd thing for Stearns to praise the government for doing what the law requires.

    1. I was surprised at his order. As I said, he threw Carney a bone but not much. Stearns has never done anything except prosecute and be a judge since he became a lawyer. DA’s office, AUSA attorney and judge. His order praising his fellow judge and the government seemed strange. He didn’t seem to catch on that there has to be a follow up investigation to discovery. Maybe Carney made a strategic error by giving up on filing substantive motions hoping for more time. He said Carney has a right to bring up the immunity question before the jury but I think he will give him a limited sway. He seems too willing to praise the prosecutors quoting their statement that defense counsel was indolent which seemed unnecessary. I’m not sure it’s over yet. I think Carney has a few tricks up his sleeves that he has yet to spring. One thing I want to see is how the government answers his 11/02/2012 discovery demands.
      I agree that the government is suppose to disclose exculpatory evidence, at least that’s what I thought. Here’s what he wrote: “With respect to the discovery material, while the government does not dispute its extent, it notes that it has produced to defendant’s counsel in a CD-searchable format, and evidence chart listing the witnesses and the associated exhibits that it plans to offer at trial, as well as all exculpatory material it has in its possession relating to each of these witnesses.” In a foot note he says, “In the court’s experience, this is a nearly unprecedented gesture by the government, one that is not reauied by the Federal rules of Criminal Procedure or the Jencks Act.” Apparently the Jencks Act requires production of much of this material after a witness has testified. That seems like a pretty stupid rule that gives defense counsel little time to prepare to examine the witness but having never done any criminal defense work in federal court I’m not surprised that the deck is stacked in favor of the prosecution.

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