There were good things and bad thing for Whitey in Judge Casper’s memorandum and order and surprising things for me.
Anyway, it’s best to start with the surprise. Now I’ve been dealing all along with the indictment that charged Whitey with the nineteen murders and I have been considering his chances with respect to each charge. I’ve told how I don’t believe there’s any chance Whitey will be convicted of the murders that Howie Winter, John Martorano, Jimmy Sims, and the guy from Somerville did on behalf of Gerry Angiulo when he decided to sic them on Indian Al. Martorano who was doing the machine gunning was the only one putting Whitey at the scene and he was allegedly in a crash car. I felt confident a jury would not buy Martorano’s story.
Then I read this in Judge Casper’s ruling on the motion: “In a 111-page, 48-count indictment, the government has charged Bulger with participation in a racketeering conspiracy involving, among other crimes, murder, extortion and money laundering (Count 1) and separate charges of racketeering, money laundering, extortion, and a range of firearms crimes (Counts 2-27, 39-40, 42, 45 and 48).”
I have to admit I had no idea that was the case. When this indictment came down I don’t recall seeing all those charges. I have to wonder what I’ve been doing writing about the chances of Whitey being acquitted. There is no chance that any jury can be found that won’t throw the Feds a bone and come back with one guilty; and, as we seen if it comes back with only one Whitey will still be sent off to the deepest and darkest prison in America for the rest of his life.
The bad thing is that Carney and Brennan (C&B) lost their chance to put up a defense of immunity. That means many of the witnesses they intended to call to show this will not be able to testify. This makes their task more difficult because no matter how sleazy the Feds’ witnesses are; and no matter how futile the hope for a runaway jury; there’s little chance the jury can overlook the bodies that were unearthed near the Neponset River or Tenean Beach.
I suggest you can’t say C&B lost this defense. It seemed to me they never set about to find it. Judge Casper talked about it as being evolving which is another word for changing form. C&B never seemed to know from one hearing to the next what it was asserting as its defense. Every time the prosecutor would bat down one balloon they floated they seemed to come up with another one that was slightly different. Judge Stearns tried to find out and not hearing anything had to assume it there was nothing there and he ruled it out.
Judge Casper opened the door to let C&B try again but she noted C&B “declined any pre-trial hearing regarding [Whitey’s] claim of immunity on the grounds that “[t]he defendant will not request an evidentiary hearing that the court is not authorized to conduct” and further that Whitey “would not participate in any pre-trial evidentiary hearing determinative of the immunity issue . . . .”
Assume C&B are correct that the court has no authority to conduct the hearing (which is highly doubtful). They must recognize the court does have the authority to exclude evidence they want to introduce from the purview of the jury. So what they hoped to gain with such a losing position escapes me especially since the burden is on the defendant to establish the terms of his agreement with O’Sullivan.
The good thing for Whitey is that Judge Casper is a tolerant person. Even though C&B have slammed the door shut in her face, she’s not taking umbrage. She leaves the door open for them to recognize that their present position avails them nothing. As a final good will gesture, Judge Casper gives the C&B team a helpful suggestion.
She said look guys, immunity is out but “there are related defenses which Bulger could present to the jury.” She then spelled them out: the defense of public authority and the defense of entrapment by estoppel. Going further she said even though C&B say they don’t want to raise those defenses, she’ll give them until next Monday to reconsider their position.
This is the last chance for C&B to delay the start of the trial (outside of some Whitey illness). Keeping in mind their goal has been to delay the inevitable, the big question now is will they go for it. To get it they have to put Whitey on the stand. It’ll be a long weekend for C&B to figure out what was the deal between Whitey and O’Sullivan.
Bill:
An FBI counter terrorist agent ssid every call or email made by an American can be retrieved. He suggested the FBI can access the contents of the call between Terlan and his wife before and after the MTA. The Cyclops knows everything. I believe he has to be considered omnipotent.
Bill:
The big difference is the people who suffered under the other forces hated them; here the people welcome them and see nothing wrong with having every communication they make recorded be the government nor SWAT team conducting house to house sweeps without warrants or even suspicion in such as net that was worse than the British ever died in Revolutionary days. In other countries those who fought overwhelming police force were heroes, here they are considered traitors. The people have ceded total power to the state at the cry of the terrorist is coming. Imagine we now have Homeland Security Police.
Bill:
You still have six bodies. Someone murdered them. Jury nullification won’take them disappear.
Bill:
The Parade Case had a valid issue. Whitey is not someone who does. I’m not hoping he beats all the charges or wins the case. I’m trying to put his life into some sort of perspective compared to the others. We cannot look at him as some sort of wronged man. There may be some who have been thus treated but Whitey is not one of them. He is where he belongs. He’ll never be freed. The only questions are how much more taxpayer money will be wasted on him not that it matters to a country that drops bags full off money into the hands of an Afghan strong man and I’d rather have it go to C&B than Kharsai’s; what prison will Whitey end up in; and whether the reputation of some wrongly defamed can be corrected by telling a truer version of the story.
Matt: Final Thought for this Easter Morn: Happy Easter: “The Truth shall set you free”; the truth sometimes hurts. Consider, if you will, that as hinted at in the book THE FIX (Connolly and Lee) and the chapter in Shots Heard called “Blackout in the Balkans” (veterans Connolly, Kiander, Farrow), it seems the FEDS have turned psychological-operations (Psy-Ops)against, not foreign enemies, but our own people. I call Psy-Ops “Cyclops” b/c it’s evocative of a monstrous evil eye in the sky watching all of us: preying on us,, prying at privacies! Give them an inch, they’ll take our yards!
Matt, i finally had an insight into what’s wrong with AMerica’s Secret Police (upper echelon elements of FBI and HOmeland Security): they think they have the right to intimidate adn harrass their fellow Americans, on “suspicion.” Whose suspicion? Their own! Their own unchecked self-manufactured accountable-to-no-one, bureaucratic hacks’ suspicions. I ask again: What’s the difference between the KGB, Gestapo, Kafka’s and Orwell’s Nightmares come to America?
Matt, brother Andy said, following up on Ishniall, that in Carney’s opening he also should say, “Admittedly corrupt Mr. Morris, another of Prosecutor Wyshak’s witnesses, a known liar and attempted murderer, also planned to plant bombs in innocent persons’ vehicles, to intimidate them into silence or worse. It is Serial killers and Domestic terrorists that Mr. Wyshak, your federal prosecutor, intends to put before you, the Boston jury; he says he believes them and asks you, the jury, to believe the lying filth that spews from their demented souls and forked tongues.”
The “Rope”, a good movie by Hitchcock, about 2 HI Intel guys committing the “perfect” murder by strangulating a stranger (movie is a spin on the Leopold and Loeb true crime horror.) In the end, the evil-doers get the noose or worse. Things look as bleak for Whitey as you say, Matt, but I remember in the Parade case, the lead counsel for the Parade Crashers, a supposedly top-notch, top-gun legal beagle from Peabody & Arnold, said of the Veterans’ Chester Darling after his 3 years running worth of losses in Massachusetts Courts: “Looks like Mr. Darling has marched in his last parade.” In fact, within a year, Mr. Darling was victorious at SCOTUS and Peabody & Arnold had gone over the cliff. “The race’s not always to the swift!” With a rock and sling, David slew the Gigantic G-Man and made cold cole slaw outta Goliathan’s heft and then the G-Man’s Goons soon came tumbling down like Humpty Dumpty. The point is, Matt, that it’s not over until the fat lady sings. 2. Ishniall said all Carney & Co. have to do is say to jury, “Mr. Flemmi, a craven terrorist bomber, an accused rapist of underage women, a violator, corrupter and killer of his own stepdaughter, is the Government’s lead witness, courtesy of Sir (sirrah)Fred Wyshak, your Federal Prosecutor. How can anyone believe one word that comes out of this vile, satanic man’s mouth? How low can our federal prosecutors go?”
Jay:
1. C&B can appeal her decision after the trial. The appeals courts only like to hear one appeal that covers all the issues and that comes after the end of the trial. There are rare exceptions to that, as we saw with the recusal motion. C&B can revisit any issue but after trial.
In Flemmi’s case Judge Wolf found that Flemmi had been given immunity by the FBI and he was set to have more hearings on what remedy he would Impose. The government was given leave to appeal that finding because it alleged there was no power in the FBI to grant immunity and the subsequent hearings were unnecessary. Since the appeals court could terminate future hearings if it agreed with the government and could end that part of the case, the government was allowed to appeal.
It all comes down to the “big package” approach. If everything is in it to conclude the matter the appeals court will hear it. The last thing it wants to do is review every trial ruling. That’s why C&B are pretty much at the end of the rope.
Dear Matt,
I’ve reviewed your posting of Judge Caspar’s decision as well as the preceding and subsequent commentary you’ve posted; thank you for making that primary text available! I have a few procedural questions: 1) Is Caspar’s decision able to be appealed to the First Circuit? I’m not sure what the standard of review would be for such a decision – whether it was an abuse of discretion? Or would such an appeal potentially be deemed frivolous? Could C& B revisit the issue of the pretrial hearing, since this appears to be a critical cusp of Caspar’s reasoning, that the Court required more information whereas C& B failed to provide it, even given the opportunity to seek it? I am guessing that could be in the form of a Motion to Reconsider, except this time to reconsider Caspar’s decision rather than the original one by Stearns?
Also, I was wondering if you could shed some light towards how this decision is procedurally distinguished from Flemmi’s immunity argument in U.S. v. Flemmi — did Flemmi receive a pretrial hearing on this immunity motion? I recall that the district court allowed for evidence suppression and then was overruled by the First Circuit. See 225 F. 3d 78 (2000), https://bulk.resource.org/courts.gov/c/F3/225/225.F3d.78.99-2292.html.
You are much better versed on these issues, and I defer to you when you have a moment to share any insights.
Sincerely,
Jay