In my prior post I noted that over a year after the US Attorney Brian Kelly said he gave defense counsel all the documents in the case it appears a few are still outstanding and there seem to be many problems, real or imagined, with what has already been produced. I’ve written that because of the special characteristics in this case the court should make every effort to insure defense counsel is properly prepared to defend an infamous man who is universally believed to be guilty in a case of watched throughout the nation.
On earlier dates I wrote that Whitey is not unhappy with the delay. He knows that after this case is tried or otherwise wrapped up things are only going to get worse for him. He’s content to be where he is until his clock runs out.
The pull and tug are the prosecutors (and victim’s families) push for a quick trial and the defendant’s desire to forestall that. I’ve suggested the prosecution erred in putting itself in a position where it finds itself still bickering with defense counsel over the discovery fifteen months after Whitey’s arrest. I listened to the presentations of counsel in court on Friday and found it difficult to understand without having the documents in front of me exactly what the problems are but there seemed to be many. In replying to each others allegations counsel seemed to be talking past each other.
Unfortunately my sense is that there seems to be a fair amount of antagonism between the sides. It is difficult to move forward when this type situation exists because neither side believes in the good faith of the other. Having been in those situations before I don’t think the solution lies in the hope counsel will see the light and begin to fully cooperate. Nor do I think Judge Bowler can unravel the many knots without putting aside her other responsibilities and dedicating a great amount of time to this issue.
The important thing now is to finish the initial phrase of discovery and move on. I’ve mentioned there are 300,000 or so documents. I have to believe that at least 98% of them are not relevant to the matter. The trick is to find the 2% that matter. Judge Bowler has asked the government to group the documents into separate categories by the end of this week. This is a good directive. But it is not enough. I suggest more should be done.
I assume the cost of the defense of Whitey will be very high. Defense counsel has said he has four lawyers working full-time on the case. No matter what it is, we have no choice as I noted yesterday but to accept it to be sure that justice is done.
I mention cost because I’m going to make a suggestion that may add a little more to it. Think of what is going on now during this discovery stage as a boxing match. We have two heavyweight contenders sitting in the corner with their handlers. The judges are sitting at ringside waiting for the bell to ring. Before it begins, one more person must be thrown into the mix, the referee. That is what is needed right now: A skilled impartial referee or a team of three referees with litigation experience who can immediately devote a solid block of time to meet with counsel, listen to their complaints, examine the documents, and make a report to Judge Bowler. This could be done by the next status date which is October 5 or at least by the middle of that month. The report will end the involvement of the referee(s). Judge Bowler will have a bright line upon which to make her decision and from which to move forward.
I tend to be against adding an extra ingredient to the usual make up of a trial but considering the special nature of this case this will go a long way to insure the public perception that the defendant, prosecution and victims are being treated fairly and the case is moving along expeditiously. For precedent from my experience, I’d refer to the Boston school desegregation case where Judge Garrity appointed masters to decide one limited issue.