The Extra Burden On Whitey Bulger’s Lawyers In Preparing His Defense

As promised I was at the court hearing yesterday and here’s what is happening.  Judge Marianne B. Bowler came into court determined to push the case along.  Several times she told defense counsel that they wanted all the documents the government had, they got them, and they should get on with it saying “that’s what trial preparation is all about.”
J.W. Carney, Whitey’s lawyer sat silently while she was talking about the discovery.  Well he should.  He has a young attorney in his office Hank Brennan who made an extremely skillful presentation on behalf of Whitey.  With remarkable persistence and a calm and controlled manner he talked Judge Bowler down from her positions.

He’s lucky in a sense.  The judge is good —  she listens.  She sets out her belief but will entertain a dissent to it, something not all judges will do.  Even more to her credit is she is willing to modify her position when it appears a little out of kilter with the facts.

Brian Kelly represented the prosecution and did a good job of pushing back against Brennan but considering the judge entered the court with one opinion and left with another the day could only be chalked up for Whitey.

Fred Wyshak only spoke one or two times during the discussions over redacting documents.  Carney did speak at the end of the hearing relative to the prosecutions displeasure with his actions.

One topic discussed was redacting.  This is the art of blanking out parts of a document and inserting therein the word “redacted.”  It seems to happen when the document starts to get interesting.  Wyshak explained that most of the redactions were informant information.  Judge Bowler chimed in that “of course, we won’t release that type of information.”  Brennan responded that a lot of the redactions he’s seen do not relate to that  and what was redacted ten or so years ago might not need to remain redacted.

Anyway, as you can tell, it was a back and forth.  So what’s going on?

The judge is right, the government has turned over 240,000 or 340,000 documents over to defense counsel, I’m not sure of the exact number but when you get into the hundreds of thousand of documents you’re dealing with enormous numbers.  But within the documents are some documents that have been produced tens of times in different areas and are supposed to be identical but seem to differ,  others have significant redactions, there are lots of blank pages where it seems something should be, others that are under protective orders that seem to include books and newspaper articles, and some are almost illegible.  All of this presents to defense counsel a formidable task in going through and assembling and relating it back to other documents.

The prosecution position is they got the documents it’s up to them to figure out what to do.  We’ve done our job.  The defense says what we’ve received makes it impossible for us to figure out what to do.

I think the prosecution has made a huge mistake in this case.  It is fighting with defense counsel rather than cooperating with it.  It seems to have the idea, “look we all know Whitey is guilty so let’s get on with it, have our trial, and see what happens.”  But the prosecution should understand that defense counsel can’t say “OK we’ll go to trial and see how it works out.”  It has a different obligation.

Whether defense counsel believes Whitey is the worse person in the world or not, it still has to make sure the government proves it case.  That’s the obligation on defense counsel — that’s how our system of justice works — the prosecution has to prove its case in the courtroom and not in the court of public opinion where it has already has had years to operate and has won a unanimous verdict about Whitey.

This imposes upon defense counsel an even greater burden.  It has to make absolutely certain that nothing, and I mean nothing, is allowed to slip by it.  J.W. Carney said in an article about him in BC Law magazine that they are going to eyeball every document.  If he did anything less than he would not be doing his duty.  Every document of the hundred of thousands documents given to defense has to be read, examined and related back to other documents or information.  This is really an enormous task.  This has to be done by defense counsel because there might be one document with information that will make a difference in whether the jury believes a prosecution witness.  It may contain statements given by a witness on a prior occasion that are the opposite of what his testimony is.  It may be a debriefing where another person puts people at a crime scene other than the ones the prosecution says were there.

Think of it this way, no defense counsel wants to find out after a trial that he or she overlooked valuable exculpatory information.  It’s too late then.  The prosecution will argue that the defense counsel was provided with the evidence and should have found it before going to trial.

The prosecution apparently does not intend to point out the evidence that can be used to impeach its witnesses.  It has the attitude that the defense has to plough through all the hundred of thousands of documents and find it.  I suggest the prosecution is making a mistake.  I suggest it should point these things out.  (Actually, I go beyond that in my book Don’t Embarrass The Family — I suggest that since the prosecution uses witnesses who get paid for their testimony, unlike any other witnesses, there should be a mandatory burden on the prosecution to ensure that any evidence that can be used to impeach their paid witnesses be disclosed fully and completely.)

I’d suggest to the prosecution that if it wants to try this case in a timely fashion it recognize that the defense counsel has a great burden and that by cooperating with it rather than engaging in battles the sooner it will reach its desire goal of bringing the case to trial.  I guess the prosecution doesn’t understand this but I’d suggest it recall what Eric Holder said its obligation is not to win cases but to see that justice is done.

Whitey is not guilty of any crimes until a jury in a court room says he is guilty.  J.W. Carney and team are obligated by their oaths as attorneys and the ideas behind our Bill of Rights to give Whitey the best defense possible, especially when the clamor of the public seems to resemble the old time string ’em up mentality.  Our history teaches us that defense counsel have an obligation to take on unpopular causes.  The only way justice will be served in this atmosphere is to allow the defense the time necessary to prepare for the trial.

Of course the prosecution wants to push for a quick trial date.  That means the defense has less time to prepare and will be less effective.  I believe Judge Bowler is beginning to recognize that this is the case.   Of course defense must go through the documents, this is part of trial preparation, as the judge indicated, but in a case with this many documents and so much at stake, it should be recognized this is an extremely difficult task, and is only the beginning of trial preparation.

Tomorrow I’ll tell you where I think we go from here.