Whitey’s Appeal Hearing: Climbing an Insurmountable Mountain

(`) Joe BltzI 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.

10 thoughts on “Whitey’s Appeal Hearing: Climbing an Insurmountable Mountain

  1. I’m the lone vote to say Brennan scored a major victory on his client’s appeal. The appeal will certainly be denied, but that was never the goal. Bulger’s goal wasn’t reversal as much as it was to expose the massive flaws in the federal justice system.

    It was a continuation of the defense strategy in the trial. At trial, the defense virtually conceded the case in the opening and then focused on outrageous conduct by the DOJ, including the current prosecutors. Unfortunately, no news outlets sent an experienced trial attorney to observe and report on the trial. If they had, their report would have revealed a complete abandonment of 400 years of legal precedent. Specifically, the judge repeatedly permitted the government to speak directly to the jury via speaking objections. The judge also abandoned the requirement that the government not lead it’s witnesses on direct. Instead, the witnesses were lead through scripts carefully designed to avoid myriad land mines. Brennan had a field day blowing up the prosecution’s paid witnesses. David Frank, a reporter for the Mass Lawyers Weekly was appalled by the conduct of the trial. Mainstream reporters only latched on to sound bites, like Lundholm’s fabricated story about being forced to play Russian Roulette with a “silenced revolver”. (That’s a physical impossibility.) The prosecution team relied heavily on the ignorance of the media and the public. In reality, the prosecution was very worried by the defense’s tactic to put the federal system on trial. With respect to Bulger’s appeal, the prosecution continues to bank on the ignorance of the media and the public. But there are many facts that have them concerned about the appeal.
    Allow me to make one conjecture here. The appeals court will deny the appeal on grounds that the defense failed to make an evidentiary showing that would permit them to present the immunity defense. When judges Casper and Keating decided the matter, that’s what they hung their hats on. Both trial judges further gave great deference to the weight of the evidence presented by the prosecution to prove that Bulger had no immunity deal.
    Bulger already furthered his goal on appeal when he forced the DOJ to present pretrial evidence that there was no immunity deal. The government’s evidence consisted solely of a most regal affidavit from the Deputy Attorney General, David Margolis. Not surprisingly, the affidavit merely states that the DOJ does not make such immunity deals. This prosecution’s affidavit actually furthered Bulger’s interests. Much like J. Edgar Hoover, Margolis is a DOJ lifer, a true company man. He is approximately 75 years old and has been in DOJ for about 45 years. Margolis has publicly described himself as the DOJ’s “fixer”. He “makes problems go away”. Margolis is the end of the line for any federal agent who has a problem. He sits on top of the DOJ’s Office of Professional Responsibility. Margolis is the keeper of the reputation dir all DOJ agencies. For example, Margolis reversed the disciplinary findings of two DOJ lawyers who drafted the “Torture Memo” that falsely gave Bush authority to torture suspected terrorists. Instead of being fired and disbarred as the OPR first reported, Margolis edited the report and quashed the matter. One of the “torture memo” lawyers is now a federal judge. Similarly, one of the First Circuit judges who heard the Bulger case wrote the memo authorizing POTUS to kill US citizens in drone strikes without prior judicial intervention. Once long ago when a prized informant was “accidentally” indicted by a grand jury in Ohio, Margolis flew there and had a “private conversation” with the grand jury. The indictment was withheld and the informant (Jackie Presser) continued to run rackets and provide information to the DOJ for years while his crimes were ignored by Margolis et al. Margolis has been described by a contemporary as “Yoda”, adding that “you don’t F with Yoda.”
    The fact that Bulger forced the prosecution to bring The Fixer out of the shadows is telling. Note that the Margolis affidavit was sent to Judge Richard Stearns. Stearns had also been a DOJ company man who had worked for Margolis. After Stearns was booted off the trial, he was replaced by Judge Casper. She not only worked for Margolis, she had reported directly to Wyshak, the lead prosecutor who subsequently slapped her around the courtroom during the trial. In fact, almost every federal judge, appellate judge and U.S. Attorney in Boston has worked for Margolis. The incestuous relationships and blatant patronage of the federal system in Boston was best described by Roger Wheeler’s son when he said it’s a “cesspool”. One of the most interesting facts about Margolis is who he once worked for. Wyshak’ most valued witness in the Bulger trial swore on his life that Margolis was once being bribed by organized crime for protection from prosecution. I’m not stating that Benji Ditchman was being truthful in this regard. It is extraordinary, however, Wyshak relied on Flemmi’s credibility at trial to secure the convictions against Whitey while blocking Bulger’s immunity defense with Margolis, who was allegedly on the take. The intrigue runs deeper, there’s much more afoot than meets the eye.

    A last note regarding Margolis. His MO for protecting the DOJ’s reputation is to hang one agent out to dry and put everything on that agent by feeding the media a cover story to protect the rest of the DOJ. He’s done this in many instances, including the “House of Horrors” case in which the DOJ listened as their wired informant killed a man. Then they sat back as he killed 11 more. One low level agent was disciplined. Sound familiar?
    And so while it looks like Bulger is going out with a whimper, the truth is that the DOJ has their hands full keeping the lid on the Bulger case. They need the media to stay in line for a little longer.


    1. Patty:

      You are a lone voice. If the flaws were exposed then the result was a big yawn. No one cares so what is accomplished in doing it. True, the basis for the appeal is not there because there should have been an offer of proof which was lacking. It is still unknown who, what, when, where, how or why the so-called immunity deal took place. Courts cannot speculate on those things; it was up to Whitey to come forward with something but he failed so everything else falls apart.

      Much of what you say is true but no one is paying attention. Margolis is a particularly obnoxious situation that one person could be in a position of power for so long is really bad for the country. It is the same reason the FBI cannot change because the AG like the Director is a puppet afraid to “get down to business” and clean house of all the dead wood.

      Another point to keep in mind is that Whitey was the wrong messenger to point to corruption.

  2. “Yes, there’s much to learn from Whitey just to see how he looked at things.”

    My sentiments exactly, Matt.

    1. Any idea why the feds won’t release the manuscripts that they seized on Silver St. and in Santa Monica? Could you possibly get your hands on them and post them here?………….that would address your statement …“Yes, there’s much to learn from Whitey just to see how he looked at things.”

  3. Matt, your post should be mandatory reading for every new lawyer. Judges are not engineers. Thank God for that. Justice is about people. The law and material facts can only take you so far. Like a good book or movie there needs to be a compelling theme to get most judges to move out of their usually small comfort zones.

    1. a species that hires mercenaries to protect
      them looses their ability to protect
      themselves and are doomed to extinction
      when their bodyguards turn on them

      This just in from the criminal justice system crime

      as I have said before one path
      the voters and taxpayers might
      take to set and enforce standards
      for the criminal justice system they
      own is to create a volunteer civilian
      review police board with subpoena

      Looks like Newark NJ was listening…


      Newark Police Compares Black Mayor To An Ape In Facebook Message

      Jul 27, 2015 3:08pm

      A Newark Police Department (NPD) lieutenant is under investigation for allegedly referring to Mayor Ras Baraka as a primate on social media. The incident comes several months after the mayor signed an executive order establishing an independent civilian review board to monitor police misconduct.

      Police are looking into a Facebook exchange between the lieutenant and a retired officer after receiving a screenshot of what may be the lieutenant’s personal page. The lieutenant reportedly received a photo of an ape with the caption “Lmfao….How’s your mayor?” The on-duty officer allegedly replied, “Exactly!!!!” and “Bring back Sharpaaaa!!!!!” — presumably referring to Mayor Sharpe James, who served as the city’s leader for 20 years.

      According to Police Director Eugene Venable, the Newark Police Department’s social media policy prohibits officers from posting anything “which could possibly be misconstrued and reflects negatively on the department.” Information about criminal investigations is also banned from social media.

      “The general order was created as the result of several embarrassing instances of online activity by members of the department that were quite racy and somewhat, quite frankly, borderline discriminatory…Violations of the order could result in disciplinary actions, including dismissal,” he told NJ Advance Media.

      A Justice Department investigation released in 2014 recounted years of racial discrimination and civil rights violations in the NPD. In addition to 20 percent of the officers using excessive force, members of the force routinely stole property and disproportionately arrested black residents. African Americans constitute 54 percent of the city’s population but make up 79 percent of arrests. They are also “2.5 times more likely to be stopped than whites, 2.7 times more likely to be searched, and 3.1 times more likely to be frisked.”

      The Facebook investigation comes three months after Baraka implemented a unique civilian oversight committee in response to the DOJ’s findings. Under consent decree, the NPD agreed to create an independent monitor after the DOJ discovered that only one of hundreds of excessive force complaints were sustained over a five-year period. Baraka signed the executive decree establishing the Newark Police Department Civilian Complaint Review Board in April. And unlike many police monitors in the country, members of the board can subpoena police records and enforce disciplinary actions — making the board one of the most progressive in the nation.

      The social media exchange also sheds light on a pattern of racist correspondence among police officers. In Ferguson, police and court officials sent emails depicting President Obama as a chimpanzee, the First Lady as a bare-chested African woman, and mocked black residents for their speech. Officers from the San Francisco Police Department repeatedly sent the word “nigger” in a series of text messages, in addition to referring to a black person as a “monkey” and an “animal.” The Huffington Post also compiled a list of damning emails that were circu


  5. “This post has as much nutrional value
    as the shoe eaten by Charlie Chaplin in
    the film Gold Rush” exclaimed Elbows Wychulis
    to his friends gathered around the Green Mountain
    coffee machine at Flying Pond Variety.

    Pick Up trucks emblazoned with the decal 4X4, filled
    the parking spaces with their gun racks illuminated
    by the early morning sun cresting over the top of
    Eaton mountain.
    A steady stream of customers navigated their way
    around this boisterous crew of early morning

    These was still a din of walla wallas whispering around
    the half and half dispenser , a response to King Marty Walsh’s
    St Crispus Day speech announcement that Boston
    would not host the Olympics.

    “Whats the news from the whisper stream
    Elbows?”Enid shouted from the check out
    cash register

    in other news


    Doogie Huckster
    A Terrorism Expert’s Secret Relationship with the FBI

    Trevor Aaronson

    July 27 2015, 11:25 a.m.

    EVAN KOHLMANN IS the U.S. government’s go-to expert witness in
    terrorism prosecutions. Since 2004, Kohlmann has been asked to testify
    as an expert about terrorist organizations, radicalization and
    homegrown threats in more than 30 trials.

    It’s well-paying work — as much as $400 per hour. In all, the U.S.
    government has paid Kohlmann and his company at least $1.4 million for
    testifying in trials around the country, assisting with FBI
    investigations and consulting with agencies ranging from the Defense
    Department to the Internal Revenue Service. He has also received
    another benefit, Uncle Sam’s mark of credibility, which has allowed
    him to work for NBC News and its cable sibling, MSNBC, for more than a
    decade as an on-air “terrorism analyst.”

    Kohlmann’s claimed expertise is his ability to explore the dark
    corners of the Internet — the so-called deep web, which isn’t indexed
    by commercial search engines — and monitor what the Islamic State, al
    Qaeda and their sympathizers are saying, as well as network the
    relationships among these various actors. Kohlmann doesn’t speak
    Arabic, however, and aside from a few days each in Saudi Arabia,
    Jordan, Dubai and Qatar, has hardly any experience in the Arab world.
    Kohlmann’s research is gleaned primarily from the Internet.

    Indeed, Kohlmann is not a traditional expert. Much of his research is
    not peer-reviewed. Kohlmann’s key theory, to which he has testified
    several times on the witness stand, involves a series of indicators
    that he claims determine whether someone is likely a homegrown
    terrorist. Yet he has never tested the theory against a randomly
    selected control group to account for bias or coincidence.

    For these and other reasons, Kohlmann’s critics describe him as a

    Kohlmann’s works are “so biased, one-sided and contextually
    inaccurate that they do not provide a fair and balanced context for
    the specific evidence to be presented at a legal hearing,” said one
    terrorism researcher.

    In a court filing, Marc Sageman, a forensic psychiatrist and former
    CIA officer who has been called to the witness stand several times to
    discredit Kohlmann’s claims, described his testimony and reports as
    “so biased, one-sided and contextually inaccurate that they do not
    provide a fair and balanced context for the specific evidence to be
    presented at a legal hearing.”

    In recent months, however, the small cohort of defense lawyers
    nationwide who battle the government in terrorism prosecutions have
    been asking themselves another question: What’s in the government’s
    mysteriously classified materials about Kohlmann?

    The questio

  6. Matt
    Still no word or clue as to if Whitey Bulger will go on trial in Florida and/or somehow be connected to another trial in Oklahoma (based on Wheeler hit)? I was under the impression Bulger was transferred to Florida for another trial.

  7. Matt
    I am looking forward to your responses to my most recent comments in Parts 2 and 3 of the series based on my questions. I printed out the Wolf report. Its about 225 pages when I printed it out from the link you provided. Thanks

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