It’s Sunday so I’m reflecting on things. Last night I was at a book group discussing the book “Who Am I” by Richard David Precht. It concerned a lot of philosophical questions relating them to what we know about the human brain and offered some suggestions about being happy. Philosophy’s purpose is to ask and answer questions so I suppose having read the book and engaged in last night’s discussion over wine and a meal I’m of the mind to ask a question today.
It relates to yesterday’s post that talked about how it appears people who are supposed to be concerned with justice apparently turn their eyes to injustice as long as the person being adversely affected is one who society has hostile feelings toward. As I noted evil thrives when people who believe they are good do evil things,
I have this sense that when you mix good with evil the good will become tainted and the evil will remain unaffected. You’ve heard me say before you can’t take the gangster out of the gangster. Mixing a little white paint with black results in little change whereas mixing a little black with white makes a world of difference. The evil person cannot really change whereas the good person can be compromised by evil.
Isn’t that the theory of the case against FBI agent John Connolly that he was corrupted by his association with Whitey Bulger and Stevie Flemmi? No one suggests Connolly made those men less evil; rather, it is that they made him less good.
We are told that John Connolly knew or should have known that Whitey Bulger was murdering people. That is my sense especially as regards the trilogy of murderous episodes involving Roger Wheeler, Brian Halloran and John Callahan. Some people who comment here contest that statement saying if that were the case why wasn’t something done about them because if Connolly knew so must have others known. They throw back at me my words that I do not believe Whitey or any of his henchmen buddies told other people of their murders.
It is true that I doubt Whitey told others of his murders. If Whitey’s criminal philosophy is that the idea behind committing a crime is not to be caught, as Brutalman Weeks told us, he certainly wasn’t going around confessing to others his crimes. However, the circumstances surrounding the trilogy mentioned above are such that not only Connolly but most FBI agents involved with him had to believe Whitey had a hand in those murders. Nothing was done because the FBI was protecting its top echelon informants as it continues to do to this day.
To catch Whitey, it became necessary for the people investigating him to interact and deal with the corrupt and evil Murderman Martorano, Brutalman Weeks. Kingsman Salemme and Rifleman Stevie Flemmi? They relied on them for their information and paid them for it through direct cash subsidies and reduced sentences. They became their buddies, as I relate in my book Don’t Embarrass The Family. I wonder does their relationship with these gangsters mirror that of Connolly’s and can it be said that they, like Connolly, should have known things that they averted their eyes from?
All of which brings me to my question:
“Is it proper to allow a witness to perjure himself on some matters if you believe he is not lying on more important matters?”
I ask this because it appears, especially with Brutalman Weeks, that he lied under oath when testifying in the trial against John Connolly. The prosecution team should have known he was lying. It has information from impartial witnesses that during the murder of Halloran, the man firing from the back seat of the car was bare-headed. Weeks said he wore a ski mask so that he would not have to identify that man. That statement did not play a major part in Weeks’s testimony but it did serve to cover up the identity of a murderer. Can we say it is in the province of a prosecutor to put a person on the stand he or shet knows is perjuring himself? Does a prosecutor rationalize that when the witness swears to tell the whole truth it only applies to the major issues.
The same situation applies to Murderman Martorano. He brags about killing three or four innocent people who are driving in their cars when he is working for the Mafia’s Underboss Gerry Angiulo. He says the man doing the shooting with him in the back seat of the card is a guy from Somerville. It seems clear that is untrue. He knows who this person is and will not identify him. Is it all right for the prosecutor to make a deal with a witness to let him protect some people in a murder while implicating others? Or, does that present shades of the Deegan case where Joe Barboza who was covering up for his friend Vincent Flemmi took him out of the murder scene and added others, a feat that cost the taxpayer over a hundred million dollars when it was discovered.
Those are two of many examples. It shows the involvement with gangsters puts the prosecution in a position where it has to reason that the little lies of its witnesses are not perjury. It does that by telling itself that those are not material to the main issue. They are lies nonetheless and they are material to securing a witnesses testimony especially when they involve protecting murderers who the gangster witness want to protect.
It seems to me that the white hatted prosecution team must notice that each day since they began interacting with their gangster witnesses their hats take on more and more of a gray tinge.
I also do not believe in second guessing the person actually in the case. I very reluctantly commented on the cross examination of the government witnesses because Judge Trauro had to become involved. At some point our respect has to admit the possibility that there has been a shortcoming in trial skills. I have not and will not comment on the defense’s trial strategy because, as you have said, I m only an uninformed bystander.
For thirty years as I dressed every morning, before me, framed in my closet, was Teddy Roosevelt’s famous quote about critics of the man actually in the arena. I was in the arena, I won my victories without crowing and took my beatings in the media without complaint. I was a big case man and big cases brought big problems. (And little cases bring little problems and no cases bring no problems.).
It was the ride of a lifetime and I wouldn’t have missed it for the world
JHG
And after all that you ended up in New Hampshire. I guess it is true of those who have been in the pit that you may think you would have done it different or better but it’s best to hold your tongue because no one tries a perfect case. I hated losing but losing happens. I never kept records because they are meaningless unless I guess you lose every time then perhaps you should think of another way to earn a living. It is good to have your input.
I don’t think that we have a fundamental difference in our view of the role of prosecutors. I am aware of Brady, have wrestled with it many times, and think it is essential element in ensuring fairness in our justice system.
That said, sadly, violations of Brady requirements occur far too frequently. See the sham of a prosecution against former Alaska US Senator Stevens or the series of Texas death penalty cases (one of which has a former prosecutor facing some sort of misconduct charges) for only two examples. The problem is so endemic in the federal syatem that Attorney General Holder recently mandated Brady training for all asistant united states attorneys.
I think we also agree that when a government witness lies on the stand the prosecutor has a duty to stop the testimony and advise the judge of the situation.
Where we disagree is deciding what responsibilities fall to the prosecutor versus the defense during a trial. If a prosecutor leads a witness it is the defense’s obligation to object to that if the defense does not want that to continue. If a government witness attempts to avoid answering a question by rambling or merely being evasive, as long as the witness is not committing perjury, it is incumbent upon the defense to bore in and control the witness. I can honestly say that I have never heard of a prosecutor getting up to order a witness to stop being evasive nor have I ever heard of it happening. The fact that Judge Tauro on his own told witnesses to stop dissembling, to me, speaks poorly of the cross examiner.
As long as the defense has been properly supplied with what Brady and local discovery rules require it is their duty to use cross-examination to get whatever advantage they can from a witness. To some extent trials are “shootouts”. What happens to a defendant once charged by the government rests largely upon the quality of his chosen advocate. Failure to do a good job or missing a point here or there does not require the government to sui sponte act as second seat defense counsel and correct defense’s mistakes. Again, let us be clear, if a witness lied then the government must step in at once and stop the testimony.
Turning to the topic of deals. I have never been a party to a deal where there has been any doubt as to who is running who. A typical deal would call for the witness to plead guilty and be sentenced to life in prison. IF, after his coopoeration, in the sole discretion of the prosecutor, he had testified fully and truthfully, a motion would be filed asking that the sentence be mitigated to whatever the agreed range was. Another type deal would give the prosecutor, at his sole discretion, to cancel the deal at anytime if the witness was less that truthful and/or complete. The government would be free to try the defendant on any and all possible charges and use any and all evidence gathered during the witness’ cooperation.
Deals like this are easy to construct and defendant/witnesses will sign them once they realize that these are the only terms being offered and the alternative is going to trial.
Deals like these leave the prosecutor in control. But this then brings us to what I think is the crux of your argument. Once a prosecutor has a witness in his bag, even if he has the power to punish him for lying, he will often overlook perjury because he wants that witness for the ongoing investigation/ upcoming trial. This is wrong. However, it is not a byproduct of the deal, the prosecutor is not “stuck”, it is a result of having a prosecutor who will do anything, whether ethical, moral, or not, to win the case at hand.
I agree that is wrong. The way things stand now nothing is being done about this, especially at the federal level.
Not all prosecutors are like this of course. I personally know of many witnesses dropped from the witness list in “big” cases despite their abscence leaving the government in a weaker position.
JHG
Thanks for the reply. I guess we agree pretty much on everything. You are right to suggest that if the defense lawyer allows a prosecutor to get away with leading a witness through the direct testimony that is not the problem the prosecutor has to worry about. I wondered at why defense counsel sat back and did nothing to the extensive leading being done by Durham. I had a feeling that somehow Tauro had an ex parte conference with counsel and said he was going allow that to happen but had that been the case I’d have expected an objection to be placed at some point in the trial and been argued on appeal. So you correctly place that on defense counsel. I also agree that for the most part defense counsel is responsible for reigning in the witness There are ways to do this as you must know but it wasn’t being done. My problem came when it seemed the answer was to a simple question that the witness skirted but I don’t object that under normal circumstance defense counsel has to handle anything that is less than a fabrication. I think here, with the paid gangster witnesses there might be a higher obligation to instruct the witness to be more candid. Like you, I have never seen a prosecutor correct his or her witness and probably never will.
One problem with talking about what happened in the Connolly case is that defense counsel seemed not to want to muddy up the witnesses too badly because some of the mud would land on her client. I also think she was restricted by Connolly in certain things that she was not supposed to go into. In the end, she did a good job because almost all of the gangster testimony was not believed by the jury. I really don’t like criticizing any trial lawyer, for one thing he or she is in the pit making split second decisions and I am sitting as a spectator without any pressure on me and I don’t understand the case as well as either of the party so I try to recognize my limitations.
You make good points. I appreciate it.
You misunderstood my first comment if you think that I believe that the adversarial nature of the trial in any way excuses any ethical lapses on the part of the prosecution. It does not. I was merely observing why otherwise upright individuals do unethical things.
It has been my experience that if a defendant/witness wants to deal he will agree to terms that preclude his being allowed to lie about parts of his story. It may have taken a little longer to get Weeks to sign such an agreement but he eventually would have. The agreement needs to have a stick in it with which to punish a witness who post-agreement decides to shade the truth as well as the carrots to get him to agree to tell in the first place. He also needs to KNOW that the prosecutor will use that stick on him if he tries to play games even if it causes the case in chief to fail.
As an aside, the only exception I would ever allow is that I would not force someone to testify against their family (although many had no problem in doing so) if that was a sticking point. The witness could not lie or withhold information but was not required by his agreement to get on the witness stand against his family. Of course this could affect the deal he gets. (“What’ll it be? Eighteen more months in prison or will you testify against Grandma?)
As to the issue of buying testimony (and let’s not shirk from calling it what it is, trading less jail time for testimony is buying that testimony) it is an issue too large for today. Suffice to say it is an accepted part of United States criminal procedure in 2012. It is also wraught with problems both philosophical and practical.
As you correctly pointed out, in all the courts I am aware of, the judge gives a specific jury instruction telling the jury they should use great caution in evaluating the testimony of these types of witnesses. Additionally, sometime during the witness’ testimony the witness will be forced to admit that he is testifying with the hope that he will do less jail time as a result AND that he would indeed lie to stay out of jail. This is certainly fodder for defense’s closing argument. (The rare occasions that a witness states that no, he would not lie to stay out of jail pretty much finishes whatever minimal credibility he might have had before that answer.)
I believe juries do not accept the uncorroborated testimony of such witnesses. However, with proper corroboration such testimony will lead to convictions. How does one corroborate such witnesses? I am sure that you know the techniques as well as I.
Finally, I do not believe the prosecutors had any duty to reign in their witnesses on the stand as long as they did not lie. A lie, even under cross-examination, mandates an immediate sidebar and disclosure to the court so that it can be dealt with correctly.
In the many, many trials I have observed and the many more that I have discussed with participants I have never heard of a prosecutor getting up and asking his witness to stop being evasive.
We are all big boys and girls here. The failure by a defense attorney to control a hostile witness reflects upon their trial skills. If a defense attorney gives a poor closing, the prosecutor need not point out to the jury several relevant issues that were overlooked or handled poorly. If a prosecutor persists in using leading questions to his witnesses, it is up to the defense attorney to continually object and disrupt his flow to the point that he desists (if the defense has an objection to the use of the leading questions). I have seen craftier witnesses than those in this case try to evade the questions as asked and seen them quickly whipped into submission by the defense attorney. The best I ever had the pleasure to witness in action was Mr. Albert Krieger but it is not an uncommon talent among trial attorneys.
JHG;
We have a different take on the duty of a prosecutor using paid witnesses although we agree that we are dealing with paid witnesses and that the only trial lawyers who can pay witnesses for their testimony favorable to the ends they seek are prosecutors. What make the process of giving the prosecutors that right is the only check to insure the paid witness tells the truth is the ability of the prosecutor to charge the paid witness with perjury. The Catch 22 is the prosecutor can’t do that because if he/she does that the case which the prosecutor has so laboriously prepared will be undermined. So your suggestion that the prosecutor in making the deal have a stick to insure the truth is told does not hold because once the deal is made the prosecutor is stuck.
I’ve suggested that there has to be a quid pro quo for giving the prosecutor the right to buy testimony. You offer the idea “we are all big girls and boys here” as if the trial is some sort of a shoot-out where the best shot wins. The prosecutors used that rationale at one time but the Court rejected that in Brady vs. Maryland where it put the burden on prosecutors to produce evidence that shows defendant may not have committed the crime. It was an attempt by the Court to somewhat even out the playing field and make the trial more of a search for the truth rather than a game of hide and seek.
During FBI agent John Connolly’s trial the prosecutor Durham led his paid gangster witnesses through their testimony with leading questions and he sat silently while defense counsel had to chase these witnesses around the mulberry bush trying to get an answer. Judge Tauro who usually doesn’t intrude on counsel had to tell both Morris and Weeks to answer the questions and stop their evasions. In my mind, the quid pro quo for buying a witness is to have the witness not avoid answering truthfully on cross-examination. I would require an affirmative duty on a prosecutor to correct any evasions or less than forthright answers that the prosecutor knows are such. If a prosecutor knew his witness on cross-examination is not telling the full truth he/she has an obligation, like under Brady, to correct the record. What other quid pro quo can you ask for allowing the use of paid witnesses?
The real problem is that everyone shuts their eyes to the actual happening. A prosecutor uses gangsters to try to get a conviction. The prosecutor has told the gangsters he/she will give the gangster something in return for their testimony. The prosecutor is then stuck with the gangster witnesses testimony no matter how much objective evidence shows the witnesses are lying (like Weeks with the ski mask guy or Flemmi naming Naimovich as his state police source or Martorano saying the guy in the back seat with the machine gun was from Somerville). The prosecutor has to pretend he/she still believes the witnesses are telling the truth. To do otherwise undermines the whole case while the prosecutor is still stuck with the deal. In a nut shell the gangsters are running the prosecutions.
A very tough question. But, short answer, I think the white hats need to keep those hats white.
In the big picture, in the long run, any one case, no matter how important it may seem at the time to everyone (including the participants, media, public etc, yes, like the current prosecution of Whitey Bulger) is just that, one case. Years, even months later no one will remember the particulars.
But the hats will still bear the stain of prosecutorial shortcuts.
If a prosecutor believes his witness is committing perjury (no matter how small the issue) he cannot in good faith put him on the stand as a government witness. The act of putting him on the stand is vouching for his truthfulness.
I don’t think you’ll get much disagreement on the above from most prosecutors. However, the real problem is their position that when they don’t KNOW a witness is lying, that “Hey he could be telling the truth”, they are allowed to put that witness on the stand.
For example, Weeks says the other guy in the Halloran double murder (it always irks me that the murder of Donahue is just ignored as collateral damage in the Whitey case)had a ski mask on. The thinking of some prosecutors is that if there is no compelling evidence to the contrary, (and they can categorize any evidence to the contrary as “not credible”), he goes on and testifies.
This is where the problem lies. If we take as fact that the prosecutor in question is pure as the driven snow and after carefully considering all the facts known to him is truly convinced that Weeks is telling the truth then I think we can say he is correct in putting him on the stand.
We have already discussed the circumstance where the prosecutor knows Weeks is lying on even a small matter (although the identity of one of two killers in a double homicide may not seem like such a small matter to some)and, hopefully, agree he shouldn’t go on.
The much more frequent case is where the prosecutor shows “willfull blindness” toward his witness (the prosecutor knows OR SHOULD KNOW) he is lying and puts him on anyways. Our criminal justice system is an adversarial one. Our litigators are aggressive to begin with and when locked in a months or years long battle sometimes allow the desire for victory to color their sense of justice.
The solution to much of this problem, especially with cooperating witnesses such as Weeks, is proper preparation in crafting the cooperation agreement. Given a choice between naming the person in the car (BTW it was Pat Nee if you haven’t been following the story)or losing his deal and doing more time, what do you think that Kevin “TWO WEEKS” Weeks would do? (Two weeks is,roughly, how long he held up after being arrested before rolling over)
JHG
Thanks again for another thought provoking post.
You point out that a prosecutor can reason to anything by closing his or her eyes to the actual facts in order to produce a necessary witness. I’ve written before that once a deal is made the prosecutors have made the thug part of his team and is forced to shut their eyes to their lies. Of course the prosecutor can reason that the witnesses who saw the guy in the back seat bareheaded were wrong and accept Weeks’s suggestion but to accept that three guys went to kill two guys and one of the killers was unknown to the other guy is dealing with sheer fantasy. I don’t see any way around that.
I also don’t buy the idea that because our criminal justice system is an adversarial system and prosecutors like defense counsel have put in lengthy time and have a great desire to win that this justifies any lapse in ethics. I’ve been there and wanted to win as much as any defense lawyer but I still had a higher obligation to insure none of my witnesses lied.
I believe that if the prosecutor is allowed to put on paid witnesses, he or she has a greater burden than the normal litigant. I saw in the Connolly trial how the gangsters gave straight forward answers to the prosecutors and gave the defense lawyer a great run around. The prosecutor sat silently while that happened. I don’t think that is part of the adversary system to allow your paid witness to obstruct and obscure the truth. There must be a greater obligation when using one of them as the judge instructs the jury it must be more cautious and more scrutinizing before accepting that type testimony.
As to your question about Weeks, I believe he would have given up his whole family and all his friends, including Nee, if the prosecutors bargained correctly. He would have done anything to get out of jail. The reason they did not do this was they needed him to give them the fake meeting at the liquor store on December 23, 1994 so that they could bring Connolly into the statute of limitations and bring the RICO charges relating to the obstruction of justice charges on the murders.
I agree that the hat has to remain white. I started this believing that was the case but the closer I get to the facts it seems not to be. It’s the old problem dealing with gangsters over a long period of time, you become like them.
Appreciate your comment. I hope it is read by others for the good information it contains. Thanks.
JHG:
I really appreciate your comments about the Florida judicial system. I’ve had a chance to review what you have written. I don’t want to spend too much time on Connolly as I’ve mentioned because he’s sort of a side issue to what I am concerned about.
I still can’t get over the idea that Florida is serving up huge amounts of injustice. The idea that more than 50% of appeals are decided per curiam which for all times fixes the jury verdict with no written opinion is ripe for abuse. Especially, as we’ve seen here where a person got a 40 year sentence. The idea that financial restraints necessitate this doesn’t mean it is not wrong.
But in the Connolly case reading your answer I see the law in Florida is in a confusing state. The judge, Stan Blake rightfully in my mind, said to extend a statute of limitations with a gun charge meant the person has to have the gun at the time the crime is committed and the gun has to be part of the crime. You suggest that the statute could be extended if the person had a gun during anytime the crime was being planned and also suggest if Martorano had strangled Callahan if at any time a person who was part of the criminal act had a gun then the statute could be extended.
In Connolly’s case we know he was never in Florida at any time during the crime, he was never shown to have carried a gun at any time, the best evidence of the gun came from some regulation that said he was required to carry a gun, and that the gun used in the crime had nothing to do with Connolly.
I can’t buy the idea that if the crime was a conspiracy between two men to strangle the victim and it was shown during the pendency of the conspiracy that a person visited a gun show then the statute of limitations could be extended because a gun was used as part of the crime. That is pretty much the evidence against Connolly. No gun he owned had anything to do with the crime and suggesting that a statute can be extended by something not related to the crime does not make sense to me.
Your insights are helpful to me, they made me pause in my thinking for which I thank you, but I’m still sticking to my opinion that in his case an injustice occurred. However, you make me more discouraged in my belief that there is some hope for Connolly to ever get out of prison. Thanks again.
Where do we seek JUSTICE, when the INJUSTICE of POWER is our DESTRUCTION? Euripdes
Jean: Good quote. The only thing that changes are the faces.