There are a couple of things I can’t figure out in the Carney & Brennan (C&B) discovery motion. First, I don’t understand how they can hide the substance of the deal they say Whitey had with O’Sullivan. I’d think the prosecutors would zero right in on that. They should suggest to Judge Casper that if Whitey had a deal then it must be disclosed prior to any discovery motion even being considered.
Other than that, everyone is thrashing around in the dark. After all the stalling, bumping and shoving if it turns out the deal that may be suggested by Whitey is so far out of the realm of reality things can come to s screeching halt. Judge Casper could take judicial notice there was no deal at all.
C&B are alleging a Government cover-up to hide the deal by claiming Whitey is an informant. What is it that is so important that the Government feels compelled to take this action? Right now, we don’t know.
But there is a greater mystery as far as I am concerned. Why does it matter whether Whitey was an informant or not. What great bearing could it have on the issue of immunity?
Are we supposed to believe if Whitey made the deal with O’Sullivan that included the crux of the deal, of which we are ignorant, but also in addition he agreed to provide the Department of Justice information, then this extra cooperation would be rendered the deal null and void. Or, put another way, the deal with O’Sullivan would not have happened if he also agreed to be an informant.
C&G in their motion go to great lengths arguing Whitey was not an informant. Flemmi testified Whitey was an informant. Morris testified he was an informant. From his prison cell in Chipley, Florida, convicted FBI Agent John Connolly told TJ English in 2012, that he knew Whitey was involved in criminal activities but “I didn’t ask about that. My role was to protect Bulger and Flemmi so we could make cases against criminals based on information they gave us. That was my job. Everyone knew that they were top criminals and murderers.”
It seems everyone says Whitey was an informant. Even Jeremiah O’Sullivan who is supposed to have made the deal with Whitey said to a Congressional Committee that he knew Whitey was an informant. What then is the significance of C&G’s argument that everyone is lying about this?
I can’t see how Whitey gains in his case by denying this. I cannot envision a circumstance that would make passing on information a detriment to a deal. Nor can I figure out how labeling Whitey as an informant if he was not one enhances the Government’s position.
Perhaps if I knew what the alleged deal between O’Sullivan and Whitey was then I could figure this out. Right now we’re in the idiotic position of being asked to put our faith in Whitey’s assertion of a secret deal.
Whitey’s discovery motion in effect say that he had this deal with the Government to get immunity. The Government is doing all sorts of nasty things to pretend it doesn’t exist. C&B then set fort a few examples of what they allege are bad things the Government has done before.
They continue by saying because of this they should be allowed to go fishing through the Government’s files to see if they have any luck. After this expedition, they may tell us if they found any evidence to back up the secret deal. Or, perhaps they’ll tell us they have to go fishing in another lake.
I suggest it is about time that Judge Casper ask them what type of fish they fishing for. Only then, when she knows what they are after can she decide whether to finance the trip. To continue without this knowledge makes a mockery of the case.
When we learn that we can figure out why Whitey is so intent on denying his informant status. We can weigh the bona fide of the Government in alleging he was an informant. No more hearings may be necessary. Much of the mystery will disappear from the case. And the show can go on as scheduled.
Matt, I assume you are retired? I think you should come out of retirement and straighten this whole system up! I believe you ARE the only one who can do it. You are the man for the job! Enjoy your weekend.
Question:
I’m retired. Or I used to be before I got the idea to do this blog. It’s perhaps because I’ve walked away from going to the courtroom that I can write like I do. It would be unfair to a client to take the establishment and try to represent her in court. I’ve seen when some judges used to get mad at an attorney and when they couldn’t do anything to him so they took it out on his client. As I see it my job now is to point out where the system is out of kilter and could be improved. There are a lot of good people in it but they are so mired in it they don’t see how bad it is. (The old not seeing the forest for the trees.)
Thanks for having such confidence in me.
Dear Matt,
Thank you very much for this thoughtful response. The piece about Weeks I got from seeing his interview in this National Geographic piece entitled, “Bullets Over Boston” available at: https://www.youtube.com/watch?v=SoFCtpj12Xc. I am curious about the source of the very interesting information you reference about Weeks’ more selfish motivations. I have researched much into the House investigation side of things specifically as applied to the past sensationalism over William and the hunt for James, and less towards figures such as Connolly, Grieg, and Weeks. However, your blog continues to be very informative in contextualizing the even bigger picture, with all of its moving parts. In the above video, Weeks stated that he chose to inform only when he learned that James was an informer, because he was angry that James was a hypocrite. Also, I wondered if given the total lack of evidence that O’Sullivan ever made any immunity deal, that the argument would fail; doesn’t a formal grant of immunity have a certain protocol for implementing it, some record somewhere? I wonder if this mysterious “deal” alluded to now would be something not as formal as immunity and for which it could be justifiable that no clear evidence of it exists. The Government can assert that if there was an immunity deal, there would have to be a record of it somewhere. Asserting now instead, as you point out, that it was not an immunity deal but instead of an entirely different nature — basically, the exercise of prosecutorial discretion — which does not require such a formal arrangement. I wonder if this stance would afford greater leeway, and the fact that it will raises some interesting issues about DOJ practices in general. When does prosecutorial discretion becomes prosecutorial misconduct? Can the prosecutor make the claim that, as in your hypothetical, Stephanie will not be prosecuted for the drug dealing, but then later, when all the drug dealers are caught, you will go ahead and prosecute Stephanie anyway, given that the statute of limitations has not run?
I guess it raises the issue of whether that deferral to prosecute is an enforceable contract of sorts; also when you mention the “nolle prosequi” this is, I assume, precede by an arrest or an indictment. I think that Bulger’s case differs in that there was no arrest or indictment until 1995, right? So that would not fall under a nolle; is it even possible to have an exercise of prosecutorial discretion when there has been no arrest? Does law enforcement “work for” the prosecution? My understanding of checks and balances is that law enforcement is a part of the executive branch, and judges, prosecutors (and defense attorneys) are officers of the court.
Please forgive my lack of experience in procedural politics and practices.
Sincerely,
Jay
Jay:
Weeks’s nickname in Southie and elsewhere is two Weeks. That’s how long it took him to start looking for a way out of prison after he was arrested. He’s even suggested that Whitey told him he could do whatever was necessary to save himself. He’s said when he saw Martorano turn state’s evidence he though it was all right for him to do so. He said that when he learned Whitey was an informant then he felt he could become a rat himself. Weeks’s bottom line was he hated jail. He said during Connolly’s trial that to avoid jail he’d admit to assassinating President Kennedy. Of course he was jesting, but the idea he wanted to get across was he’d do anything to get out. Week’s testimony is in my book.
You note the defense counsel C&B have moved away from the immunity argument. They could have stayed with it but Stearns already ruled O’Sullivan nor any one else in the Department of Justice could give a person immunity for any future murders. By the way the formal immunity usually comes about in grand jury or court hearings, the type we are talking about is the informal kind that can be specifically stated or implied. It I as a prosecutor, or even if a cop is working an investigation, I could have a cooperating person buy controlled substances from X and give them to Y as part of the investigation. The cooperating person is factually distributing drugs but is doing so under the understanding he will not be charged or that he has immunity.
C&B are now saying the O’Sullivan promised Whitey he would not prosecute him for any actions he took while performing his part of the mystery deal. The prosecutor’s discretion is quite broad in that area. No one can be prosecuted unless the chief prosecutor in the area decides that will happen. I suppose the limitation would be if the prosecutor was corrupt. She’d have to e impeached or removed from office and then the new prosecutor could then do the charging. No court can charged a person with a crime.
As to Stephanie I’d hope the prosecutor would not double cross her but if she became poofed then that could happen. Stephanie should however be able to get the bargain enforced by the court which would use contract law to bar the prosecution. However in your example, if Stephanie is dealing with an unethical prosecutor who already doubled crossed her then that type prosecutor would probably lie about the deal. The judges would believe the lying prosecutor rather than Stephanie, the dealer.
As you note any deal made is enforceable under contract law or in what used to be called equity. One had to carry out the bargain especially when one side fully performed the terms; or in equity it would be some sort of “unjust enrichment” concept. The courts when they determine prosecutorial trickery was involved will prevent an injustice from happening.
Nolle prosequi comes about after a criminal complaint or indictment issues. Prior to that time a prosecutor can make an in-house determination not to charge a person and she is not required to do anything about it. It happens often. Cops would come to me with a fact situation which they said proved XYZ committed an arson. I’d look at it. I’d then say it did or it didn’t. If I decided it didn’t, the case ended.
I told about one case I had. The Magistrated wouldn’t issue a complaint against a cop. The person seeking the complaint appealed the magistrate’s decision to a judge. He heard the evidence and ordered the Magistrate to issue a complaint. I agreed with the Magistrate the the cop shouldn’t be charged and I nolle prossed the case. The judge was furious but helpless since he could not do anything about it.
Bulger’s situation has nothing to do with nolle prosequi. He’s arguing along the Stephanie lines that he had a deal with O’Sullivan who said if he did that mysterious thing then he would not be prosecuted. He did as asked but he’s been double crossed.
All cops work under the prosecutors. The bad prosecutors are the ones who let the cops run the show. The prosecutor and cops job have built in tensions and they should exist. I’d always give the young ADAs a little talk to remind them they are not cops. Cops have the hard job being on the streets dealing with the criminal element; the ADA sits back in an office and waits to see what they dig up. That doesn’t mean everything they bring in no matter how hard they work to get it must result in a criminal charge. You may imagine a cop’s reaction when I’d tell her after she had spent months on an investigation that I was not going forward with her case.
Three branches: legislature (Congress or Beacon Hill), those who make the laws, executive (president, governor, Attorney General, prosecutors, cops), those who enforce the laws and judiciary (judges and probation and magistrates and grand juries ) those who interpret the laws.
I’m glad you ask questions and seek answers. It’s good you have the interest and I’m always happy to hear from you.
Dear Matt,
I would suggest that perhaps C&B are attempting to distinguish the case of James Bulger from the earlier precedent established in the Flemmi case, in which immunity claims were dismissed. The First Circuit held that the FBI had no authority to grant immunity; if Bulger WAS an informant, then arguments would lapse into this realm of precedent — that is, that the FBI had no authority to grant immunity, and that there is no evidence that the U.S. Attorney’s office granted immunity, especially given subsequent statements to the contrary. By stating Bulger is NOT an informant, this creates a new realm of jurisprudence, not yet explored, and demands a more searching inquiry of the facts and application of legal principles to this new series of alleged facts. In addition, perhaps the reason why the prosecutors have not “zeroed in” on this, as you astutely opine, is because they do not want whatever this arrangement was, to be made public. Perhaps it is not all smoke and mirrors?
Perhaps it is the same reason why, as you asserted in a prior post, the RICO charges were dropped — to diminish the need to delve too much into the merits of certain facts and to focus upon others. This whole episode is derived from FBI misconduct at the highest levels; over time, the resolution has been to target a few individuals, publicly shame them, and then to declare that justice has been served. This is the recipe which has been dished out by the Committee on Government Reform during its hearings; by the DOJ; by the U.S. Attorneys in the Boston office; and by those such as Weeks and others who have unabashedly become informants. Ironically, Weeks informed only when he was told that Bulger was an informant — as a hostile retaliation to cope with his feelings of betrayal. Yet, what if he was not an informant? What if there really WAS something else going on? The package which has been sold to and then by the news media seems a bit too perfect; as you explained in DON’T EMBARRASS THE FAMILY, there is much more to this story. I think that the lack of attention by the prosecution to this alleged “deal” suggests that whatever it is, it is something to remain hidden. The removal of Sterns was a blow; now this immunity issue rears its head again. The mystery continues; thank you for keeping this dialog going strong, Matt!
Do you have any thoughts about the possibility they are distinguishing from old precedent, as well as the possibility the prosecution does not want the arrangement alluded to by C&B to be revealed?
-Jay
Jay:
You are right. C&B’s initial claim saying O’Sullivan made the deal was to distinguish their case from Flemmi’s because the Court of Appeals said and FBI agent could not give immunity. Therefore they came up with O’Sullivan. I don’t see where the fact of whether Bulger was or was not an informant changes anything from a legal perspective. O’Sullivan’s deal, if one existed, required Whitey to do something in exchange for not being prosecuted. Whatever it was would not be changed by whether Whitey also gave information. In other words I don’t see O’Sullivan saying here’s the deal but to get it you can’t be an informant.
C&B have switched horses. They are no longer talking about immunity. They are now talking about a prosecutor’s agreement not to prosecute. In that sense, they are going off into a new area of the law which is whether a prosecutor can tell a person he can commit a crime and he will not be prosecuted. I think you can answer that question narrowly. I’ve done it, probably not using those words, but I’ve suggested to cops it was all right to tell Stephanie who was part of a of a group of people selling drugs that if she worked for us in identifying other people in the group and the identity of their suppliers that she would not be prosecuted by us for anything she did while getting us that information. We’d recognize she had to commit crimes such as delivering of drugs to others to work her way up in the group. In effect Stephanie was operating as an agent of the state. That circumstance was limited to a discreet activity. I’d suggest that if Stephanie while doing this decided to rob a bank she would not expect that to be part of the deal.
That’s why a lot of this is speculation because C&B haven’t decided what the deal is, or if they have, they haven’t told us.I suggest one has to know what the deal is in order to decided whether it is on the level. I don’t think the prosecutors would want to hide this. They are as anxious as everyone else to find out what this deal consisted of.
I tend to agree with the first part of the second paragraph but I would note Weeks became an informant simply because he couldn’t do the time. He used the idea that Whitey was an informant as the reason why he did this but it really wasn’t that. In facts Weeks went around telling people that Whitey gave him to OK to inform and Weeks also said that once he saw Martorano roll over he figured he could do the same thing. Weeks needed an excuse for what he was going to do anyway.
You do bring up an interesting thought when you suggest perhaps the prosecutor doesn’t want the deal to be known because they have never demanded to know what it is Whitey was to do in exchange for the deal. I don’t think that is the case. They are anxious to know and to deal with hard facts rather than speculation.
C&B knew they could not win on the immunity issue since it is hard to find any precedence saying a prosecutor can give a general immunity to a person. I think the prosecutors would like to be able to pin C&B down. They’d love to know what the deal is that O’Sullivan allegedly made. If C&B told them, C&B would be stuck with with it and they couldn’t change it as they did their legal research which we’ve seen them do with the immunity/prosecutor discretion argument. They have a much stronger case saying the court has no right to interfere with a prosecutors decision whether to prosecute. By that I mean, if you killed a person in a fight and I was the DA in the county where you did it, no court can make me indict you. It’s like in the Amy Bishop case. When Norfolk DA Morrissey decided not to prosecute her on the murder indictment, her lawyer objected and said he was going to file some type forcing him go on with the prosecution. You never heard another thing about it because once Morrissey dropped the charges no case remained in which to file a complaint.
Criminal cases only arrive with an action by a prosecutor who also can make them disappear. But here’s where C&B’s new ploy is weak. The prosecutors have decided to bring a prosecution against Whitey. As I’ve explained to others, as a prosecutor I can bring a case, nol pross it, and then bring it back again within the statute of limitations except if done on the eve of a trial or to take away a speedy trial right. C&B have to argue that once a prosecutor said he wouldn’t prosecute a person and then does, then the prosecutor has no right to do that. That brings us back to the laws of contracting. If Whitey relied on O’Sullivan’s promise to his detriment, then perhaps the prosecutor can be estopped from going forward with the case. To figure this out you need to know the deal.
It’s really a very narrow issue but in federal court things are made into federal cases and people forget what the point is. Here it is two months before trial and the sands are constantly shifting and we have no idea what Whitey was to do in exchange for the deal. Without that knowledge we can’t even begin to seriously analyze the issue. Perhaps that is what everyone wants.
I too have now read the discovery motion. In this ‘Alice in Wonderland’ case it strikes me that the government is on the defense and C&B on the offense.
Clearly, both sides are playing an insiders game of Texas hold’m at this time. We ‘the victims’ can’t even make educated guesses because, as you explain, we don’t have enough information at this time. It would appear that the judge does hold the power to demand that both parties show their hold card…perhaps at the same time so neither party has the advantage.
Also a thought: It appears to me that O’Sullivan was only the messenger and not the deal maker…Who was O’Sullivan’s superior? I thought it was Margolis. So again its the Margolis cross exam that may give us the next piece of this puzzle. And, maybe we already have a hint as to what that is.
Jean:
If we were watching a polka game and the two parties were all in and had to show their hands we’d look first at the prosecutors. He has a full house, three kings and two queens. We turn to the defense lawyers. They put down their hand. It has five aces. That’s strange we think. Aren’t there only four aces in the deck? Then we’d realize the defense team has another deck hidden in its pocket from which it is pulling out cards.
I’m getting to the point of thinking that’s what defense counsel is doing here. They are constantly changing the cards they’ve been dealt. I don’t really believe Whitey had a deal with O’Sullivan. Prosecutors don’t make deals like the defense team imagines. I don’t think Carney has any legitimate cards to play. It’s time for the prosecutors to file a simple motion saying: “The US moves that the Defendant disclose the terms of the alleged deal between Whitey and O’Sullivan. Without knowing the deal responding to it has as much substance a a handful of wind. Until such time it is disclosed the Court should rule out all discussions relative to immunity.”
I don’t see Margolis’s hand in this deal because as I said the deal is imaginary