I can’t say it was a good week for the prosecutors. Those are the exact same words I used to start off last week’s review. That’s not to say the prosecutors are bad or anything like that. It is the opposite. They’re very good. It’s just maybe it’s me and I don’t understand their strategy.
I’ve been writing that the matter of Whitey being an informant has no bearing on his guilt or innocence reasoning he can be convicted of the charges whether the jury concludes he was or wasn’t. I’m slowly, or perhaps maybe not so slowly, walking back from that position. Between M & M, Marra and Morris, who appeared to be two pieces of coated chocolate candy that defense counsel Hank Brennan feasted on, suddenly the informant issue sticks its head up through the middle of the courtroom floor like a smiling, drooling gargoyle.
It has become the issue in the case. It was put into the case by the prosecutors. They were intent on fighting back against Whitey’s assertion that he was never an informant.
They set out with James Marra who ends up on the stand for five days as a record keeper. He puts in all the FBI files containing informant information he said was in Whitey’s informant file, over 95% put there by FBI Agent John Connolly who the jurors also know, courtesy of the prosecutors, is a corrupt agent serving time in prison, and from the defendant’s opening, if they remember it and are not still puzzling over what Carney’s restaurant kitchen reference has to do with the case, was paid by Whitey to give him information.
Five days of Marra who came across as an agent with an agenda and who was a little too slippery repeating word for word lines he had been apparently been programmed to spin out. He was initially put in the case in 2004 or later by the Department of Justice’s Office of the Inspector General to deal with finding information on whether Connolly who retired in 1990 leaked from FBI records material relating to 5 murders between 1976 and 1982 to the gangsters. He admitted this was the only time he knew of the OIG being involved in such an old matter.
He was weak on FBI procedures which Brennan clearly showed. But that wasn’t Brennan’s purpose in using him. He cross-examined him in a long and slow and deliberately tedious manner asking him to identify individual 209 reports (209’s are what FBI agent file to report what an informant tells them). This fixed them firmly in the jurors’ minds. They had to wonder what importance would be attached to them. Their suspense would not last long.
After Marra, John Morris, the corrupt supervisor took the stand. He was awful as shown by the brilliant red flush on his face that made it look like he was on fire from inside –is it a prelude peek at his ultimate fate? He showed that the FBI was as corrupt as him when it catches him lying, punishes him with the sting no greater than a pin prick, then picks him for a plum position, promotes him, and puts him in charge of training all new FBI agents. What could he possible teach them other than treachery?
It wasn’t only that but we hear him sneaking off to meet Whitey after 10:00 pm at Agent Connolly’s Southie condo where he has some beers. He reached Whitey by parking far away and walking through the back alleyways so as not to be seen. He’ll deny that he left him later on with a little more in his pockets than when he went there. A denial no one will believe.
What kind of image does that give the jury of an FBI supervisor creeping through ash can obstructed Southie alleys late at night. His purpose has to be nefarious. Yet he’ll go on and tell the jury that his record at the FBI is spotless except for the times he lied to the investigators from the FBI’s Office of Professional Responsibility. He lied about leaking documents to the Boston Globe.
He lied about violating the second most important commandment of the FBI which is engraved on the stone tablet J.Edgar Hoover was given atop the hill next to the Washington Monument by ….. which is “Don’t Disclose An Informant’s Identity.” (You know the first is “Don’t Embarrass The Family.”)
He too like Martorano believes he was a good man. Hank Brennan showed the jury the many bad things he had done as he raked him through the glowing coals of his treachery leaving Morris as the only one in the courtroom who believed his assertion. That raking also adding to his brilliant blazing blush.
After we get a good look at Morri’s soul, Brennan starts talking about the reports in the FBI files which he put in through Marra. The jurors went home for the weekend after an hour or two or more after hearing how information Connolly attributed to coming from Whitey could be found in the files of other informants before or on the same date if the other informant was one of Connolly’s. Brennan sent the jurors out with a clear picture that at least in some files Connolly had attributed information to Whitey that came from other sources. Why is he doing this if Whitey is an informant the jurors have to ask?
The length of time Brennan took in setting up the records through Marra and comparing them with Morris will keep this fixed in the jurors minds. Brennan started off his questioning of Morris on Friday asking him if he left through the front door of the courtroom after he testified on Thursday. He replied affirmatively. Brennan then asked him whether just before leaving the court James Marra came up to him, put his arm on his shoulder, and walked out of the court with him. Morris admitted they walked out together but did not remember the arm on his shoulder.
The jury will certainly remember in their minds these two witnesses walking out together in a conspiratorial type manner. They’ll imagine them planning to tell the jury what seems to be a less than candid story. They’ll be reminded of this in final argument.
The prosecutors fell for Carney and Brennan’s (C&B) trap. They took an issue that had no relevance and made it into the one major issue in the case, one that can destroy what they seek to accomplish. Why didn’t they let C & B introduce the issue in their defense? By that time after hearing of the murders, guns, drug dealings, and gangsters the jurors ears would be closed and their minds made up.
If the case is lost it will not reflect upon the preparation and trial ability of the prosecutors which is excellent. It will be on their obsession. Their need to crush Whitey under the heels of their storm trooper boots. C & B with nothing to work with recognized this as their Achilles heel, a true one because there was only one tiny area, like the fingertip marks left by Thetis in her son’s heel as she dipped him in the River Styx, that could save their client.
They lured their opponents into the forest. Sat back and waited. Then shot the arrow that hit the mark. It’s still early in the trial but the prosecution has dug itself a deep hole to climb out of.