Whitey Trial: Penultimate Update Hours Before Kickoff

2013 France-3000_2520June 3, 2013 has seen a flurry of motions.  I assume they were filed in chronological sequence so for those interested and keeping track here’s what was filed.

#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.



10 replies on “Whitey Trial: Penultimate Update Hours Before Kickoff”

  1. I’m a day late in commenting on this, but the media argument that there will be harm to the public if they can’t hear from Cullen, Murphy, et al is really quite funny. On another subject, I haven’t been able to find the questionnaire for the jurors online. Is that document publicly available? Just curious.

    1. Pam:
      It is sort of funny since the public has heard from them over the years and one can’t say it has been particularly helped by the one sided story that has poured out.

      The questionnaire is private. You won’t find it unless you can sneak into either the prosecutor’s or defense counsel’s office. The judge has it under seal. After the jury fills it out some will be called back to be asked other questions by the lawyers.

  2. Finally, Matt and N make some sense and finally I agree with both 100%; Everyone at the Y and the L are glad the FEDS are finally going to tell the whole truth and release all the unexpurgated files their holding on everyone. Of course, I’m completely sincere about Matt and N, and of course, I’m being cynical, ironical and sarcastic about the devious FEDS who I wouldn’t trust as far as I could throw them. Matt and N you’ve each said it very well in your own individual inimitable honest ways, with integrity.

    1. William:

      Don’t ever agree with N 100% – that is the road to ruin. You should know that from the way he always changed the rules to the games especially when he found himself behind. Remember the time you were playing basketball and he came up with the explanation that showed even though you were within one basket of reaching the goal of 21 baskets and he had only 17 he suddenly announce he won because he had four baskets than should have gone in and therefore should have counted toward the final score. So be wary. As for trusting me, absolutely you’ll not go wrong doing that.

  3. What is the real position of the Feds? Was WB Flemmi’s partner? Did that combination help bring down the Boston LCN? Were Zannino, Anguillo et al ever arrested and tried? Wasn’t the basis of the evidence the Prince St. tap? Didn’t Flemmi help? How do the Feds have 700 pages of reports from Connolly attributed to WB? If Connolly made them up ( similar to the notional reports in a Graham Green story) then what was his relationship with the FBI? Can the government effectively persuade a jury that a certain fact is the truth today when at other times it said it was false? Doesn’t the law in a criminal case require proof? If a fact is just as likely to be true or false then nothing is proven. Should C and B file a motion to preclude Flemmi from testifying? The prosecutors concede he’s committed perjury and is convicted of ten murders. Wouldn’t that place him below the minimal threshold of credibility to testify? 2. Did the Russians ever warn the FBI about WB? 3. What kind of person would be willing to sit on this four month trial? Is the government engaged in a war against women? Many of their witnesses Martorano, Flemmi, Weeks and Rakes have awful records in that regard. 3. C and B should make sure that the photos of WB and Grieg walking their dogs gets into evidence. Kindness to animals is a positive attribute. 4. You, Patty and others have been 100 % correct in demonstrating WB’s insignificance to the national and regional crime syndicates. Unlike the Mafia he didn’t control the unions, gambling and heroin trade. He was a local crook only the rest is fantasy.

    1. N –
      1. I’m trying to figure out what the Feds position is. It is rather confusing. As best I can tell it goes something like this – John Connolly had a relationship with Whitey that was for the purpose of fooling the FBI into thinking Whitey was an informant against the Mafia because Whitey could not have been an informant against the Mafia because he was Irish and had no information to give on the Italians. That no one in the FBI could figure out that Whitey had no information to give. He was carried as an informant because John Connolly had an illicit relationship with him. To cover this wrongful relationship. Connolly had an informant named Stevie Flemmi who was connected with the Mafia who gave information on the Mafia but Connolly did not want to give him credit for it or he did not want the Mafia to know it was coming from Flemmi so he put it down under Whitey’s name when in fact it is Flemmi who is giving him the information. Flemmi and Whitey were partners in killing people and other crimes but not partners in dealing with the Mafia.
      The government is telling the jurors that it has a special ability to tell when a liar is telling the truth; it only happens during the time the liar is testifying for the government, at all other times the liar must be disbelieved because no one who is a liar would lie when he worked for the government. I’ve been looking around Joe’s Hall today and have found no thresholds under which Flemmi could be put
      2. The FBI is investigating whether the Russians ever warned it about Whitey Bulger. It started in 1994 and will be done as expeditiously as possible.
      3. A person wanting to give up their summer and into the fall is the type of person who has nothing to do but roll around Boston all day. No the government loves women – yes their witnesses are evil when it comes to women but that doesn’t matter – you might as well ask if Notre Dame is engaged in a war against women.
      3. (again) Whitey will testify he is the one who called the MBTA when he saw a dog walking the track one day in Southie because of his concern for the safety of the dog. C&B are going to bring the dog into court to thank Whitey. The government says if they do then they’ll bring in a pit bull to attack both Whitey and the dog that was saved. And you said you thought it was going to be a cat fight.
      4. Whitey was a bad guy who hung around with other bad guys who were much worse than he is. He controlled parts of Southie and some other areas along the South Shore mostly that the Mafia let him have. The territory was agreed upon by the Mafia and Martorano/Flemmi types – the Italians. Whitey was a local crook and probably killed a few people but mostly he was allowed to operate because he did so with Mafia guys who were not in the Mafia. Whitey’s big mistake was leaving his job at the courthouse. By now he’d have had a pension and could be sitting over at Carson Beach without a care in the world.

  4. Thanks for posting the motions and your analysis. I’m starting to get excited.

    You wrote:

    “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.”


    1. Khalid:

      That’s the way it used to be done in the old days when I first started out – we’re at the point where as the old saying goes the gloves are off and no one is wants to give an inch to the other. When the attorneys jump into the pit they will fight and scrape for every inch of advantage. There really is no other way to do it. Time for niceties is over.

Comments are closed.