#962 Carney and Brennan (C&B) want the public to be able to sit during the jury selection process. Judge Casper has said she is going to close it to the public although the proceedings will be broadcast to an overflow room. They suggest the broadcast will not give the same flavor as being physically present in the courtroom. C&B indicated that at a minimum the members of the press should be present. Maybe the court will allow the motion and only allow Howie Carr and the Globe people to be present, which in effect would be excluding the public after all.
#963 C&B want two business days advance notice of the witnesses to be called by the government and of the exhibits they plan to introduce. They point out with the voluminous evidence and number of witnesses it is only fair, it is usually done and that doing it will prevent delay in the trial. The government doesn’t want to do this. It wants to surprise C&B each day.
#964 C&B want the rest of the discovery that is due them by the end of tomorrow. It noted on May 13, 2013 it received some discovery the government has withheld since 2011.
#965 The Boston Globe’s attorney from Bingham Dana, Jonathan M. Albano filed to have Shelley Murphy and Kevin Cullen exempted from an expected sequestration order. He points out that the First Amendment right requires that they be excluded from that order because of their special knowledge of the matters under consideration. Albano says first it is not certain they will be called but doesn’t fault C&B for putting them on the list in an abundance of caution; next there are constitutional barriers to their testimony being admitted; and third even if they have to testify their special background would “threaten the public’s understanding of events occurring at trial and unnecessarily interfere with the free flow of information.”
I’m surprised the motion left out the most important reason for exempting them from the sequestration order. Its purpose is to insure that a witness will not change their testimony or be affected by prior testimony heard in the courtroom. I see little chance of that happening with either Murphy or Cullen considering the limited nature of their evidence unlike with Howie Carr who wrote a book with Martorano. I’m also surprised Albano talked about Judge Tauro not sequestering reporters in the John Connolly trial. First, none were required to testify; and most importantly, the evidence that the reporters would testify to was let in through stipulation. So although they did not testify, the parties agreed upon what they would say so obviously that agreement did away with any fear the testimony they heard would affect them.
#966 The prosecutors object to “several prominent media members” being on on the list. It says they can only provide hearsay. Obviously the government would object to hearsay from C&B when its case if full of hearsay. There’s only so much hearsay one can take. It wants their names stricken or at least allow them to attend the trial .
It was expected the government would go to bat for the press. The Herald must have called and pressured Ortiz. At least the Globe put up some money for its reporters.
The government also wants Weld, Margolis, Stearns and Mueller stricken from the list. They say their only use is to support the immunity defense which the judge has refused C&B to use. Finally, the government wants to have the family witnesses it intends to use not excluded from the court.
It’ll be interesting to see how Judge Casper rules on these since it will give a sense of the way the trial will go. Remember, nothing she does will cause the Court of Appeals to reverse her so she doesn’t have to worry about that. But she still wants to establish a reputation as an independent judge and not a prosecution tool.
967: The prosecutors oppose C&B’s plans to use statement from government attorneys made in prior cases. Most of these statements were made by the attorneys from the Department of Justice’s (DOJ) Torts Branch, not those of the U.S. Attorney’s office. The prosecutors agree with C&B’s assertion that DOJ “attorney employed all manner of diversionary and dilatory tactics . . . [and] took position and made factual assertions that were patently inconsistent with those made by” DOJ’s prosecutors. They say the jury should not be able to know this. In other words one part of the DOJ can present one story and another can present the opposite but the jury should not know.
More telling that the outcome of the motion is the statement by the prosecutor that Flemmi will admit he lied in the past in testifying before Judge Wolf and the “government position has never changed regarding Flemmi’s [testimony in front of Wolf] it was a lie then and it remains a lie today.” Isn’t it good our government can tell when a person is lying; and better, that a person it declares a liar is now one of its major witnesses.
#968 C&B’s memo to admit statements made by prosecutors. They are AUSA Kelly saying Pat Nee “is a murderer, too.” (Why has he never been prosecuted?)’ AUSA Durham’s statement that Connolly had “a very different kind of relationship, a personal relationship . . . ” with Whitey (to show Whitey was not an informant) AUSA Wyshak’s opening statement in Florida: “Jim Bulger really couldn’t help that much [in the war against the Mafia]. He was an Irish guy from Southie, really didn’t hang around . . . with the Italian Mafia . . .” Which I’ve been asserting all along in contradiction to all the authors. Wyshak went on to say Flemmi’s information was attributed to Whitey by Connolly. Finally, AUSA Wyhak’s oral argument that Connolly’s reports were false so that he could justify keeping Whitey as an informant.
I’ll keep you posted.