Jerome through another media asked me a couple of questions that I had been considering myself off and on. He’s following the El Chapo trial and wrote how Judge Brian Cogan on several occasions has to remind the jury to stay awake. He has also had a few sidebars asking the prosecutors to speed up their presentation. The prosecutors agree but then go on without doing so. He asked: “Is this a standard tactic of prosecutors in federal trials?” He wanted to know why prosecutors ask “too many questions” and are “too detailed.”
He also asked about the wrongful death suit because of Bulger’s death but I’ll get to that on another post.
Asking me to explain why federal prosecutors act like they do is a tough question. Perhaps the simple answer is they are scared of losing. I’m not sure of it but maybe that affects their standing in the office; or maybe it affects their image of themselves; or their pay. I say that because they have a tendency to load up on the charges against a defendant.
I was listening to the argument before the Supreme Court the other day on the issue of dual sovereignty: that is whether a person can be tried based upon the same facts in two sovereigns. An example of that is the case of retired FBI Agent John Connolly who was acquitted in Boston federal court of the murder of John Callahan but then tried in Florida on the same evidence where he was convicted. One of the justices noted that under the federal criminal code there are more than four thousand crimes that can be charged and over hundred of thousands of regulatory offense. So it is easy for the federal prosecutors to pile charge upon charge because so many actions have been criminalized.
In Guzman’s case there are 17 charges including operation of a continuing criminal enterprise, conspiring to murder rivals, firearms violations and money laundering. The prosecutors have the burden when bringing these charges to prove every element of the crime. Some crimes have many elements. So the more charges that are brought the more they need witnesses or documents to substantiate those charges.
I’d guess that in the Guzman case the prosecutors have a script they have developed and are following it. The script would lay out the proof necessary for each element of the charges. It would then then set out the evidence that is needed to proved each one.
They prosecutors fear speeding up because they don’t want to miss something in their step-by-step outline. They may also not want to rely on one witness to prove and element but will use three, four or even more. Where this becomes tedious and sleep-inducing is when they deal with financial matters.
We saw that happening in the Whitey trial. After talking gangsters, guns, violence, and murder the prosecutors then went on to prove the money laundering charges. You could sense the let down among the jurors. Dealing with figures is boring; the attention of everyone wanders. I wonder why this is the routine in federal prosecutions.
Speaking of piling charge upon charge, do you recall how many counts the Boston federal prosecutors threw at Senator Brian Joyce after the joint task force of the Boston Globe and Boston Federal Prosecutors (BGFPJTF) finished their investigation? The result was presented to a grand jury. Joyce was charged with 113 counts including racketeering, extortion, mail fraud, wire fraud, money laundering and tax evasion. He was a state senator that may have taken a few gifts, was involved in no violence, but he was charged as if he was a combination of Ma Barker, Teflon Don, and Pretty Boy Flyod.
Why? Did the BG part of the BGFPJTF demand that. Were they running the show? We do know much that was done by the FP part of the joint task force during the Ortez era was demanded by the BG part.
The Guzman case is an example of federal overcharging. Will the prosecutors consider it a victory if they convict him of money laundering and nothing else? Would the prosecutors be happy in the Whitey case if he was only guilty of firearm charges? I suggest not. If that is so why charge so many crimes and complicate the case?
I suppose a reason aside from being afraid of losing is that they believe the more evil things they can bring before the jury the better their chances are to get a conviction on the major crime. We saw in the Whitey case how they liked to have all the gangsters testify and tell of their past crimes hoping the jury would simply conclude, “if he hung around with those guys he must as bad as they are.”
Another reason may be that if they convict the defendant of one thing he can be sentenced not only based on that charge but upon the other more serious allegations in the complaint. John Connolly was acquitted of the major charges but convicted of the minor ones. In determining his sentence the probation office included the others in its computations.
To answer Jerome’s question the reason the prosecutors go so slow is they are mechanically going through each step of the proof for each of the allegations in the indictment. Much of the stuff is boring so the matter drags and the jurors fight to stay awake. Despite the judge urging them to move on they are handcuffed to the horse they rode in on.
On the state side where I prosecuted I got rid of the surplusage charges. It made the case more clean cut. If a guy robbed a bank with a gun and fled in his car and was involved in a police chase I’d just charge the robbery. I’d never be happy nor do I believe justice would be done if the jury found the defendant guilty of operating to endanger and acquitted him of armed robbery.