The First Circuit Court of Appeals decision spells the end of the line for Whitey. It was all a foregone conclusion. No judge in Boston was interested in bringing the circus back into town. I’ve said before that if the jury consisted of the relatives of Whitey’s victims the judges would still have found he had a fair trial. Some guys belong in prison. Whitey fit that bill.
The photograph to the left was taken by the Quincy police department detectives. It was one of the few available to law enforcement prior to Whitey’s flight. The guy facing him is his partner Benji Ditchman.
The Appeals Court decision was broken up into four parts: I: The Background of the case, (pages 2 – 9); II: Immunity, (pages 9 – 27); III: The Martorano concerns (pages 27 – 45): and Prosecutor Wyshak’s speaking objections (pages 45 – 49).
The Court found that Wyshak’s speaking objections were not egregious. Wyshak was flaunting the trial judge’s instructions not to do so. Defense counsel continually objected but somehow the Appeals Court found that was not enough. It shifted the blame to defense counsel for not requesting curative instructions and suggested defense counsel also did the same a Wyshak, both of what seem irrelevant to the issue. Knowing it should have done more than brush it off it concluded: “the government’s case was not a weak one. . . . Given all this, we have no trouble concluding that even had the speaking objections constituted misconduct, Bulger was not prejudiced.”
In the Martorano part there is one quote from the court worth noting: “While we do not need to go any further, the following is worth a mention. A “conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.””
Beautiful language. But think back to John Connolly’s appeal which I wrote about here and here. There the same appeals court knew Connolly was convicted through the use of perjured testimony yet did nothing about it.
The Martorano aspect involved two parts: the first that the government hid that it was still protecting Martorano from prosecution for his subsequent crimes which it should have disclosed under Brady; and, the government also hid that it promised Martorano he would not have to testify against his brother Jimmy, Howie Winter and Pat Nee which it also should have disclosed under Brady.
The court ruled against Whitey but had to add something because it seems it must have felt its ruling was not quite correct. It stated: “To be clear, our conclusion today by no means suggests that the government can sidestep its Brady obligations simply by conducting its own investigation and determining that potentially discoverable allegations are unsubstantiated. Our holding is limited to the facts of this case. ”
In other words we’re going to let the government get away with it here but it should not do this in the future.
The Immunity part considered whether the judge could decide the issue rather than the jury which the court said was fine. As to all the rest of Whitey’s points the court went back to a fundamental point which I spoke to about before. Whitey offered no evidence by way of an affidavit or testimony about the immunity deal. It all was brought up by the lawyers arguments but those are not considered facts upon which a decision can be made.
Here is some of the language of the court:
“As for the merits of Bulger’s immunity claim, the court found that Bulger had offered only a bare assertion (through defense counsel’s representations) that O’Sullivan gave him immunity sometime before 1984, which extended until 1989 when O’Sullivan left the United States Attorney’s Office. Bulger provided no evidentiary support, written or otherwise, for this claim and declined the court’s invitation for an evidentiary hearing.”
“There was in essence no proffer from Bulger. He did not offer, say by way of affidavit, particulars of the alleged grant, such as when and where it was given, whether anyone else was present, whether it was memorialized in some way, or whether consideration was exchanged.”
“Despite repeated opportunities, Bulger declined to make a further proffer in support of his immunity claim and likewise declined the court’s offer of an evidentiary hearing to test the Margolis affidavit.”
We still don’t know from any evidence whether AUSA Jeremiah O’Sullivan ever met Whitey. I’ve always doubted it. If he did, we don’t know what Whitey was to do in exchange for the extended immunity deal. Was it as Whitey told the judge as she questioned him about his decision not to testify: “For my protection of his life, in return, he promised to give immunity.” Or was it as he answered in a discovery motion: “in return for his assistance with a DOJ objective that did not include providing information about others” and that O’Sullivan “embraced” this objective.”
I always thought the immunity issue was made up out of whole cloth. The truth is the only deal Whitey ever had was with the FBI. Knowing Jeremiah O’Sullivan there is no way he would have even met with Whitey for to do so would have put him in a position to be compromised.
The bottom line is justice was served even though it took a little stretching to bring it about. Thus ends the trial of Whitey Bulger. His convictions will now stand forever.