J.W. Carney, Jr. and Henry B. Brennan have filed on behalf of Whitey answers to the questions Judge Stearns posed at the last hearing. The prosecutors, Zachary R. Hafer, Brian T. Kelly and Fred M. Wyshak, Jr. have also filed their submission.
Carney and Brennan cut to the chase and deal strictly with the legal issues. The prosecutors start off playing to the media by whining and complaining. They suggest they want to stop Carney from talking to the press after the hearings outside the courthouse but it seems more likely their intent is to throw more damaging things about Whitey out for press consumption. They suggest Carney s trying to do the same thing they are doing which is “to influence the jury pool in this case ahead of trial.”
The prosecutors should take a look at themselves in the mirror. If anyone has tried to influence the jury it is the government with its many statements about Whitey over the years including putting him on the Most Wanted list, telling the story of his capture, put out the photographs of his apartment, using cases like that of Catherine Greig to have victims families testify, and including in its pleadings conversations of Whitey it recorded knowing they will receive widespread attention. I know some of these things are done in court proceedings but the effect in a case of this notoriety is as damaging as any possible statement Carney & Co. could make outside the courthouse.
There have been almost a dozen books written on the case telling damaging stories about Whitey and the prosecutors act as if none of that exists. Yet rather than answering the questions of Judge Stearns they went far beyond that to continue to add more fuel to the fire using their pleadings, as they did in this recent filing, as a vehicle to prejudice the public against Whitey.
They say Whitey’s claim “that he was never an FBI informant, but still had an unlimited, legally-binding license to kill — is both strange and unsubstantiated . . . . his informant file contains over 700 pages of Bulger’s informant reports, most of which were authored by Bulger’s corrupt former FBI handler, John Connolly . . . a twice-convicted felon whom Bulger has repeatedly admitted that he paid off . . . .” It goes on to note Connolly “denied that Bulger was allowed to commit violent crimes . . . [telling a newspaper in 1998] ” . . . If they get them for violent crimes or murders, so be it. They’re big boys. We all knew the deal.””
The prosecutors cannot resist using the vehicle of court pleadings to add material not germane to the issues to prejudice Whitey, knowing they will be picked up by the media shortly after they are filed. It seems to me that if they want to do that they shouldn’t be complaining about Whitey’s lawyers. If Carney is going to be called on the carpet so should the prosecutors. They seem to be abusing the court processes with unnecessary additions to their filings.
As to the substance of the matters, the prosecutors filed an affidavit by David Margolis a long time prosecutor who was O’Sullivans supervisor. He says he never heard O’Sullivan mention anything about immunity for Whitey and then pointed out that under the rules and regulations he should not, or even could not, have given immunity. But in a case where the rules and regulations he referred to were regularly ignored by everyone involved his affidavit adds little to clarify to the matter.
I suggest Margolis overlooks what I call “in-house immunity” wherein a prosecutor tells a person he will not charge him with murder or makes a deal with a person, as we’ve seen in this case, that if the person tells him about certain murders then the prosecutors will not prosecute the murderer’s buddies who also murdered people. I dare say you’re not going to find in writing an agreement between the prosecutors and Martorano that they will not prosecute Howie Winter for his participation in murders but it is apparent that’s that deals been made.
Judge Stearns sought answers to whether a Rule 12(b)(2) claim of immunity must be raised before trial and whether a judge can hold an evidentiary hearing on the issue of immunity and require Whitey to disclose his defense prior to trial. Both sides present their legal arguments. Not having law clerks working for me or the legal acumen that Judge Stearns possesses about the federal law, I’ll let him work out the answer to those questions.
My money’s on keeping the immunity issue away from the jury. One thing Judge Stearns has going for him is that no matter what he rules the Court of Appeals will uphold it, or by the time it gets to that court Whitey will be among the departed.