I sat in the first row left aisle seat. Next to me sat J.W. Carney, Esquire, Whitey’s lead lawyer, who regaled me with stories about lawyers we both knew from the past. The courtroom was full. The Boston media gathered in its own little group exchanging notes. The regulars roamed around looking to the media types for another day in the sun. The three judges who heard the appeal were: O. Rogeriee Thompson, William J. Kayatta, Jr. and David J. Barron.
Don’t ever think that Hank Brennan the lawyer for Whitey didn’t give this his best shot. He gave what was once referred to “as the old college try.” If it were a game of five-card stud when the fourth up card was dealt to Hank it was clear his best hand would be one pair; his opponent, the government, had two aces showing even before it received the fourth card. To put it another way, he had no chance of winning to start with nor did his oral argument, which was as good as could be made given the hand he held, seem to do much to sway the judges.
We all know that in life you can only play with the cards in your hands. Hank, like his forebear who stood bold, brave and undaunted on the moor, stood thusly in the courtroom. The major hurdle that he had to get over in his argument that Whitey was deprived of his opportunity to testify was that the record in the lower court was incomplete on the issue.
To have made that complete it would have been necessary to produce some evidence from Whitey in the form of his testimony in limine or an affidavit signed by him. My supposition is that Whitey had no intention of doing either. As a result, even the great Clarence Darrow would have felt his hands were tied. A lawyer cannot try the case against the will of his client even if it means a substantial and valid legal argument will go by the wayside. The fault for Brennan not having the cards falls straight into the lap of Mr. White, as he was known among the Southie cognoscenti .
For Hank to have swayed the judges over to his side he would have needed a client who could elicit a little bit of sympathy. In other words if he argued as effectively as he did on behalf of someone who was a down-and-outer the judges may have been more interested in what he had to say. You have to understand that the First Circuit Court of Appeals on which these judges sit has had many other cases spelling out the dastardly acts of Whitey so he is not coming before them clothed in the cloak of anonymity. That is not to say his argument fell on deaf ears; rather it is the judges are not going to go plow new law to benefit Whitey.
Brennan also argued the Government failed to provide all the Brady material when it came to Martorano but the judges didn’t seem to buy that any more than they seemed to buy his right to testify was trampled upon by the lower court rulings. The Government’s argument mirrored the court’s thinking and a few references to the requirement of some rule or another were thrown in.
These arguments are over before you know it. Here’s a look at the court calendar. As you can see each side had 15 minutes, some attorneys had only 10 minutes. There is a light that turns red if you exceed it. Some attorneys try to ignore it and keep on talking. I’m told some judges are urging that they install a trap door under the attorneys so that rather than having the red light go on the door will open and the attorney will quickly disappear.
After the argument in Whitey’s case I stayed in the courtroom to listen to the next two arguments to get a sense of the court. The first case involved Alexis Amador-Huggins whose appellate attorney argued an FBI agent should not have been allowed to testify to the damage on a car bumper while his expert should have been allowed to testify. That case involved a carjacking and murder so the judges seemed reluctant to reverse it.
The last case involved Abdullah Nur who was convicted of drug distribution. He is apparently a pain in the butt because he tried the case pro se. His defense was he was wasn’t a drug dealer; the jury found he was. The issue is whether the judge should have given an instruction to the jury that it could have found him guilty of possession of drugs rather than possession with intent to distribute. The judges were really interested in this issue and grilled the Government attorney.
Their demeanor there contrasted sharply with how they acted in the Whitey matter. I never held out much hope for Whitey on his appeal based on the idea no one wanted to bring the circus back to town. After listening to the presentation by counsel and watching the reaction of the judges, I must tell you that the Whitey party is over. The fat lady has sung.