Early Morning Report – Tuesday, July 30,2013 Watching a Different Trial

After the jury went home the judge went over some of the outstanding matters that had to be considered before the case concludes. She went over her jury instructions with counsel and a few other matters. Then she brought up the issue that she postponed during the cross-examination of Fitzpatrick by Kelly, the entry into evidence of certain documents, including the photograph of Fitzpatrick standing at the grave site across from Florian Hall in Dorchester where the three bodies were unearthed.

To get a sense of this madness, you have to understand that the discussion of the matter of the photographs admissibility went on for over ten minutes. Put that in perspective of what this trial is about.

Whitey is supposed to be the top most wanted person by FBI; the leader of a Boston mob; personally involved in 19 murders, some vicious extortions, gaming, drugs, money laundering, machine guns, and some other serious stuff. The prosecutors walk away from those issues to spend time arguing over whether a photograph is admissible to show that Fitzpatrick who testified about none of the things in the previous sentence is misrepresenting that he was at the burial site at the time the bodies were dug up or discovered.  The defendant opposes it. The judge is going back and forth on it.

It shows how a trial can spin out of control. First, the one photograph won’t affect the jury’s belief in Fitzpatrick’s credibility one way or the other. It is the totality of his testimony that will be determinative of that. Second, Fitzpatrick’s testimony only related to the operations of the FBI. That is the issue over whether Whitey was an informant which also has nothing to do with the charges.

The prosecution, with the defendant’s happy helpful insistence, put the issue of informant into the case. We have now slipped into the realm of deciding whether people who knew about the informant issue are testifying truthfully. There are 19 elephants known as murders walking  though the courtroom which for the most part have been ignored because Wyshak and Whitey want to duel over the informant issue.

I received a telephone call from a person who is very interested in this case. She told me she had been reading the courtroom tweeks and that Fitzgerald got taken apart in cross-examination by Kelly. I told her I didn’t think he laid a glove on him.

I went and looked at the tweets. I can’t believe we are watching the same trial. I could see why she believed that. All they report are Kelly’s questions. Hardly do you see any of Fitzpatrick’s answers.

Anyone who is a regular to this blog knows I’m no fan of Fitzpatrick. I didn’t like his book and had expressed that feeling. I was anxiously waiting for his cross-examination. I expected, as my friend said he read in the tweets, that he’d be moidered.

Kelly went right after him with stinging questions but they bounced off him. He battered them away as easily as a fly swatter eliminates a fly. Kelly would say you can’t be telling us that you did X because I have these reports saying Charlie Smith did them; Fitzpatrick would say, “like hell I can’t. I was there. I know what happens. What the reports say that contradict what I’m saying are mistaken or wrong. I was there. I know what happened.”

Here’s my problem. I don’t want to believe Fitzpatrick but the more he was cross-examined the more I began to do just that. When you expect someone to go down easily and he doesn’t, but rather than that surprises you with his resilience, pluck and spark, you begin to think differently of the guy. I’m not much of judging a person by his bodily movements but Fitzpatrick was leaning forward, hands clasps with the attitude “bring it on. Is that the best you got?”

Damn he put on a good show. The only way he faltered, I thought, was when confronted with an imaginary conversation he put in his book between Whitey and John McIntyre. Kelly got him good on that. Fitzpatrick tried to weasel out it by putting it on his co-author, reminiscent of both Martorano and Weeks.

I’m curious whether those authors who made up their own conversation and put them in quotes felt a twinge of embarrassing knowing they too had done what Fitzpatrick did. I’m sure Fitzpatrick or his coauthor was just following what had become de rigueur in all these books about Whitey, making up conversations as if somehow they had a recording of what was said.

Kelly has a lot of good ammunition to use against Fitzpatrick. So far what he has tried to do has misfired. He’s got to be a little more subtle. He can’t push him into a trap, he has to lay the trap and have him walk into it. It may be too late for him to do that but if he’s going to make headway against him he’s going to have to do more that showing there was a photograph in Fitzpatrick’s book that may have been misleading.

Kelly asked Fitzpatrick if one of the reasons he put that photograph in his book was to help sell his books. Fitzpatrick answered “yes.”

I read one tweek saying “the cross-examination was withering.”  It was only that if you didn’t pay attention to the answers. If you listened to Fitzpatrick, you’d see there’s a long way to go to reach that point.