What do we make of J.W. Carney seeming to be trapped in the middle of a crumbling defense with the walls tumbling down all about him and not getting up from the ground and plunging himself headlong through the one opening that may lead the way beyond the marauding band of federal agents?
As the lead in the Whitey defense team of J.W. Carney and Hank Brennan (C&B) I expected that he’d have seized the opportunity that Judge Casper gave him. He let it slip by, Surely now, there is little hope left and we’ll be left to wonder why at this most critical moment he was silent.
I’m troubled by this. Perhaps not so much troubled as disappointed. I’m starting to get the feeling that there was no there, there. You know what I mean – there was never any intention to have Whitey testify about an agreement with Jeremiah O’Sullivan because there never was an agreement in the first place. It was all, I hate to be crude about it, a big joke. Perhaps not done with a malicious intent but rather as the one idea that would spark up the embers of a smoldering case that had come down to whether enough discovery was enough.
It did work to a certain extent if it were all in fun. It delayed the trial. It got the case kicked upstairs to the Court of Appeals which returned it to the trial level by booting Judge Stearns off it. But for all C&B’s loud noises their victories were ephemeral for the foes quickly recovered and now stand in a stronger position than ever. For in achieving their Pyrrhic victories they gave up solid positions in other areas abjuring the right to contest other issues by filing substantive motions and asserting that any other judge would be fine except for Judge Stearns.
As far as I can see just the illness card remains. Were the two or three trips to the hospital in the dead of the night hints of what’s to come? Ilario Maria Antonio Zannino alleged back in 1977 that he was deathly ill. Three doctors testified that the stress of a trial would bring about his immediate demise. (Apparently his continuing criminal activities weren’t stressful.) His trial was delayed from year to year. He died in prison at age 75 in 1996, 19 years later. His trial on the 1977 charges took place in 1987. Then we have the example of Vincent, Salvatore Esposito Vulgo Gigante’s son, who walked the streets of Greenwich Village in his pajamas. He too was too ill to go to trial for many years as he ran his Mafia family.
Since it’s not considered appropriate to put a man seriously ill on trial, Whitey knowing he will never be a free man and seeking to stay in his less than comfortable cell in Plymouth has no choice it would seem than to now rely on the one remaining card. It will be interesting to see how it is played.
Looking back, it should have been obvious there was no deal between AUSA Jeremiah O’Sullivan and James “Whitey” Bulger. We all got caught up in the showmanship of C&B and fell for the ruse as we are tricked by a skillful prestidigitator. Shamefully, so did the court. In retrospect we must ask what happened that everything spun so wildly out of control.
Why has which should be a normal criminal trial been turned into something like a circus? That’s not an apt description since there can be some dignity to a circus, it has gone beyond that into a travelling carnival. I suppose it’s fitting because we were told that Whitey ran off to join such a group in his youth. Well from today’s perspective his brief internship with it must make him keenly aware that he’s now part and parcel of the attraction. Imagine the money that could be made by any carnival barker that had Whitey in a cage as a side-show and people would have to come in and pay to take a look at him, like the man with two faces.
Shouldn’t way back, many months ago, the judge have demanded to know what were the terms of the agreement between Whitey and O’Sullivan and when did it take place. Many suggest a defendant can’t be forced to disclose his defense; but that is not the case here. The defendant was saying he couldn’t be prosecuted because he had this agreement with the U.S. attorney’s office. Yet when asked what the agreement was about, C&B would simply say we can’t tell you. We can only tell a jury. And all would bow their heads knowingly.
We knew, if we were paying attention, that the terms evolved over time. It went from immunity which Judge Stearns shot out of the water into an agreement not to prosecute, the latter being something according to C&B the judges had no business inquiring into. Everyone took it seriously. Why? Because of the side-show aspect of this matter?
Had we all not been caught up in the hype and looked at this with a critical eye, as one does not do when drawn to the lights and glitz and commotion and barking of a carnival, we should have quickly discerned we werecaught up in a great folly. Looking back it seemed that Judge Stearns was the one who kept his head when everyone about him was running around in imitation of Anne Boleyn after she met the headsman.
I’ll discuss it more tomorrow.
great conversation among smart people
keep those wheels spinning
is whitey and lawyers planning to call salemmi to prove how much a crazy killer and master liar flemmi is, this is gonna be a circus. I would put every government rat/witness from the last 30yrs on the stand and let them all contradict each other so the jury what a joke it is. after reading your book and thinking hard about it im leaning the c.i.#4 from the Medford induction thing is the porno guy gurino he took of to vegas and st. Laurent was still loansharking and everything else well after the salemmi flipped. he’s still in devens that would have been crazy if wolf threw the doj in jail for that contemp. I wish I new the truth. that’s what all the years of them awaiting trial was about the fbi protecting the informents, its crazy still to this day. who did whitey what to out as a informant against weeks that’s got nowhere?
Pat:
I think they will call him. The first question will be Mr. Salemme, tell me what it was like to be head of the Mafia in New England. Explain to the jury your duties. Tell the jury what the Mafia is all about. Now tell me as head of the Mafia what deals did you enter into to get yourself out of prison early. Do you know John Connolly. You know he destroyed the Mafia in Boston. He arrested you in NY City. You ended up serving 16 years in prison for that. Do you like John Connolly? You testified against him? You told a person in prison the prosecutors kept telling what to say. When you testified before federal investigators you denied blowing up Fitzgerald’s car. Martorano said you did blow it up. Was he lying. He said it was a favor you did for the Mafia, is that true. Etc
The next witness will be Howie Carr who will be used to again discredit Matorano using his book as a tool to do that. Then the other authors and newspaper people to show their connection to the feds and how the feds gave them stories to plant. Then, of course, John Morris to show how he tried to get Whitey killed by telling the Globe he was an informant.
It shows you the power of the DOJ when it backs a judge down who is trying to get information from it. When it comes to the DOJ the judges seem to be in utter fear. They are afraid to stand up to it preferring not to have the constant hassle. Like you, I wish I knew the truth, but right now that is lost in a sea of lies. I’m not sure about who Whitey wanted to out as an informant against Weeks. I am looking forward to see Weeks testify in front of his old boss, Jimmy.
My last comment was shot from the hip so it lacks the specific facts I prefer to include. It originates, however, from that uncomfortable but memorable experience of moving for trial with a problematic case. I assume it’s a feeling you know well. It’s like having a prostitute as a rape victim or a heroin dealer as a victim of a home invasion, etc., etc. Under such circumstances the prosecutor can’t afford to even shade the harmful evidence. It is imperative to show the jury the good and the bad facts for what they are in an objective manner. More importantly, the prosecutor must exhibit impeccable credibility with the jury.
For many, many reasons, Wyshak cannot pull that off in this trial. In his opening statement and closing argument, Wyshak will repeatedly apologize for, and rationalize, his choice of distasteful witnesses. That can be an effective strategy in a defective case….unless the jury suspects that you are hiding something from them. Casper and Wyshak are hiding something too big for this jury not to know it.
Wyshak simply doesn’t have the necessary credibility. He’s been working on this case since the late 1980s. This trial is the culmination of his entire professional career. Wyshak negotiated all of these sweetheart deals with mass murderers. Wyshak was there as their testimony morphed from their proffers to meet the elements of crimes in different jurisdictions as he pursued Connolly and Bulger throughout his entire career.
Wyshak made himself far more than a prosecutor in this trial. He is even more than a witness in this trial. If this trial were a movie, Wyshak wrote the script, he chose the cast, he directed and produced it, he edited it, and he very effectively marketed it through a captive media. Now, however, he is too close to exhibit that impeccable credibility necessary to try the case to a jury. He cannot be that dispassionate presenter of the facts, both good and bad facts. Instead, he has taken an ownership interest in the facts. He manufactured them; they are his facts. Wyshak tied his credibility directly to the likes of John Martorano and Steve Flemmi.
Carney:”Mr. Martorano, with whom did you negotiate your plea agreement?” Martorano: “That nice guy sitting right there, Freddy Wyshak.”
Carney: “Mr. Martorano, did Mr. Wyshak and you agree that you would only have to testify against Mr. Bulger and a bunch of guys you didn’t even know, as you wrote in your book?”
Martorano: “Yes, that was the deal.”
Carney: “And Mr. Wyshak further promised you that you would never have to testify against people like Howie Winter, Pat Nee, and your brother James, correct?”
Martorano: “Yes, Freddy said I could protect certain people.”
Carney: “So Mr. Wyshak told you you didn’t have to tell the “whole truth and nothing but the truth…?”
Martorano: “Yup.”
Carney: “Mr. Sickle Cell, nowhere in your proffers do you ever mention John Connolly’s name, do you?”
Martorano: “No, but….ummm…Freddy, help me out here..”
For Flemmi’s testimony, Carney could just play a little video of Wyshak and Flemmi having a casual laugh together in a Florida courtroom over some murder.
Patty:
Thank you. I don’t disagree with anything you wrote but you put it into a greater context than I will over the next couple of days. You rightly note that this is Wyshak’s creation. It reminded me of the time in federal court when I represented the Boston School Committee in the school desegregation case in front of Judge Garrity. The busing was his creation. He became so involved in it he’d hold up the morning newspaper that had an article about what one member of the school committee said and demand that I explain what she meant by it. I’d have to suggest the newspaper was not something I read, wasn’t in evidence, and I’d get back to him. He was so intense on seeing his baby succeed he decided how many basketballs and the make that had to be on the court at any one time at Southie high and how wide the tape the bound the ankles would be. I think the case nearly drove him insane.
So there will be a great amount of additional pressure on Wyshak to bring his career to a successful close with a win here. But Carney must, as you note, and I will explain in a future post go after Wyshak’s character. You know as well as I do that the jurors are watching every move trying to find out whether the lawyer is on the level or not. In fact, this case could very well be decided on whether Carney can make Wyshak suspect in the eyes of the jury. If he can show Wyshak planned out this outcome back in the mid-eighties without any evidence and manufactured to evidence to achieve this result then the whole case could fall. I don’t think it’s likely but Wyshak has some problem witnesses on his hands.
How about this:
Carney: “Now Mr. Martorano, you say in your book that you and the prosecution team came up with names of people who you didn’t know who you said you would testify against, isn’t that so.”
Martorano: “That’s what I said.”
Carney: “You knew that was a big lie, didn’t you.”
Martorano: “It wasn’t a lie, I was prepared to testify against them.”
Carney: “But Mr. Martorano, you can’t testify against people you don’t know, isn’t that true.”
Martornao: “I don’t know. Ask the prosecutor. That’s what they wanted.”
Carney: “You mean I should ask Mr Wyshak if you can testify against people you don’t know, is that what you’re telling me, that you think you can do it if Mr. Wyshak tells you it is all right.”
Martorano: “Ask him, not me, they gave me the list.”
Carney: “So what you’re saying is the prosecutors gave you a list of people you didn’t know and wanted you to say you’d testify against them and you said they made you agree to do that in order for you to get a deal.”
Martorano: “Yeah, you got it.”
Carney can go on all day with just this. He’s got the perfect witness to beat about the head with it since Martorano will put it all on the prosecutors. I don’t think if he cracks any jokes about it there will be much laughter coming from the team. Martorano will be the kick off witness. He should get off the stand by Independence Day a little lighter than when he went on. I wonder if the government is still paying for his lawyers. Maybe Carney can also find that out.
Patty’s right as usual. Is the jury going to find the government’s case palatable with all the serial killers at large. Are Salemme and Flemmi terrorists for placing the bomb in Att. Fitzgerald’s car? Is Martorano a white supremacist for shooting three unarmed blacks in the back of the head? How is that going to impact these people? Will a jury credit anything they say or will they be nauseated by them and reject their entire testimony? C and B have to debunk the fabrication that WB is the biggest gangster around. They should ask all witnesses what the Mafia is? How large an organization is it? Is Sammy Gravanno correct that there are four to five thousand made men in America and thousands of associates? Is the Mafia the major heroin distributor in the country? What cities does the Mafia have branches in? How many thousands of people have they killed? Contrast the local operation of WB to the national and international one of LCN. Call judge Gertner to explain her $ 75 million gift to LCN. Call a retired FBI guy to state Limone and Tameleo were high ranking Mafia types responsible for the deaths of Deegan, Barboza and many others. Should they have been rewarded? C and B can ask the jury if they want to embrace and adopt the Mafia version of history and advance it’s interests or reject the unseemly deals and the preposterous version of events advanced by the prosecution. Ask the jury to wash their hands of this corrupt bargain and discount all the Feds propose. Just say NO.
N:
C&B do not have to go that far. All they have to do is wear rubber boots to court when the slimy gangsters are on the stands and walk around like thy are wallowing in the slime that is coming from the witness stand.
Your suggestion that Whitey is bad but the Mafia is badder doesn’t help Whitey. The jury will still want to punish him even if he is not as bad as others. Keep the Mafia out. Deal with the people before them. C&B can blacken them enough to cause the jury to want to send a message to the prosecutor to clean up his act.
N is correct and points out one of the many dilemmas the prosecution faces. In order to justify his sweetheart deals with mass murderers, Wyshak will definitely argue that Martorano is bad but Bulger is badder. That argument also works perfectly for the defense: Bulger is bad, but LCN is badder. If the guy standing before the jury, Wyshak, can release and protect massmurderers just to get one geriatric hood, what did Wyshak’s predecessors give Bulger to get the entire New England LCN? It’s fairly obvious to me.
Patty:
That’s a good point. I missed it in N’s comment. A great tactic for Carney is to show that Whitey (although he says he wasn’t an informant) brought down the New England Mafia which is much worse than anything the 7 Winter Hill Egos could have done. Or, Winter Hill is bad, the Mafia is worse, how then can it be that Whitey is worse than Martorano when Whitey had nothing to do with the Mafia and Martorano in his book tells how he went about murdering people for the Mafia. So who is worse, a guy who works for the Mafia or against it. A guy who killed two black teenagers who had no involvement in any criminal activity by shooting them in the back of the head or Whitey who killed other gangsters. Maybe Wyshak better look for a better hand.
Are you saying Limone and Tameleo were in fact responsible for the Deegan murder? I’m still researching this issue.
And Barboza? My understanding is that Barboza was hit in 1976 by JR Russo in San Francisco. Limone and Tameleo were in jail – not necessarily a bar to giving an order, but I don’t think anyone in LCN needed to hear an order from Limone or Tameleo in jail to know that bosses Patriarca and Angiulo wanted Barboza hit.
My comment was directed to n connolly.
Matt,
I think you jump to conclusions a bit prematurely in this instance. There is still a long road ahead and many twists and turns before a verdict next fall. For example, C&B may still file an interlocutory appeal and further pretrial motions. During the government’s case in chief, we can expect numerous bombshells as the disgusting deals the government has made with mass murderers, some known and some still undisclosed, come to light. Bulger’s immunity deal may actually come into focus from the government’s own evidence.
Remember the words of Justice Souter, ‘it is indisputable the DOJ wasn’t dealing with Bulger at arms length.’ He further said that the ‘relationship with Bulger clearly extended beyond the FBI and into the DOJ.’
Throughout his case in chief, Wyshak will be forced to dance around the twelve ton elephant in the courtroom: “How did one man do all this crime without ever being arrested?” The jurors will sense the elephant. With each witness who piles decades of mayhem at the feet of Whitey, the elephant will grow larger. “How did this happen?” Then Wyshak’s mass murderer witnesses will walk in the door of the courtroom off the street, (well tanned), and talk about their outrageous deals and how they fooled Wyshak into the deals. “Can the government make such deals to put mass murderers on the streets?” The jurors are going to learn the extent of the government’s power to protect criminals they like. Whenever the testimony veers towards the most logical explanation to the $64,000. question, Wyshak will scream “objection” and before the word is completely out of his mouth, the judge will yell “sustained”. “How did this go on for so long?” And the elephant will grow larger. “Why won’t Wyshak let us hear about this?”
Often, the defense’s case is somewhat illogical. After all, it’s goal is merely to raise a reasonable doubt. Here, the government’s case is blatantly illogical. It has a gaping hole that it must avoid at all costs. It may just be more effective for C&B to let the unmentionable elephant grow until it takes over the courtroom than to trot it out for Wyshak to shoot it head on. Casper the Friendly Judge’s ruling may have put a legal feather in her colleague’s hat, but there is no way she can help Wyshak hide the facts without helping the defense. The government’s case has problems no matter how friendly the judge is.
C&B are not going out with a whimper and neither is Bulger. Very early on in the case, Carney said he doesn’t expect to get fair consideration from the captive judges in that court, but he is confident he will get it from the jurors. He has been proven correct on the first part of that statement. This ride hasn’t even begun. Hold onto your hat.
Patty,
Rather than getting into your comment too much I turned it into a post for tomorrow. You usually give me good ideas which is why I welcome you to come here often with your thoughts. You’ll see tomorrow or whatever day you get back here how you inspired the post. Thanks for writing.