Here’s my take away after from reflecting on the happenings of last Friday.
The Case Is Different and Unique: Whitey Bulger is a national figure if judged by the nationwide coverage of certain of the events in his case. There have been around a dozen books written about him and countless magazine articles. He is believed to have killed in cold blood upwards of fifty people. For almost 20 years as a top criminal he was considered both as a sinister and beneficent type figure in a major section of the city of Boston. The government plans to use as witnesses against him serial murderers. These persons did less than a year in jail for each murder they confessed to and some wrote books. The families of the victims have brought civil suits against the government and gained seven-figure judgments against him for his relationship with the FBI. Judges hearing the case and reviewing it have universally condemned Whitey and his FBI relationship. His FBI handler is still in prison after ten years. His brother a top political figure was forced out of office because of the relationship. He was on the FBI’s Most Wanted List for over a decade reaching number one after Osama bin Laden was captured. The tipster received a two million dollar award. His girl friend got sent to eight years in prison for the crime of staying with him(six months for each year of his 16 year flight). He was approved as a Top Echelon Informant from the FBI director down the FBI hierarchy to the lowest level which approval allowed him to commit his crimes. He asserts he has receive immunity for his crimes from the US attorney. There are blogs about him that have a significant following. There is a high local interest in his case judged by the attendance of the press (seven television cameras) at such benign events as a status conference.
The Lawyers Are Not Communicating: Whitey was arrested in June 2011. The lawyers are still bickering over discovery which is the production of evidence to the defendant by the prosecution. The next step is the filing of substantive motions based on the discovery. It is difficult to properly file those motions unless the discovery is completed. The prosecution argues that it has provided hundreds of thousands of documents to defense counsel. It has said it has complied with the court requirements. It does not recognize that this is other than a usual criminal case. Defense counsel argues that much of what it was provided is duplicate documents and that it has to go through all of it; that much of it is redacted (blocked out) and 95% of the redactions are not necessary; and over 200,000 documents are under seal which prevents free use of them of which 95% need not be sealed.
The overriding factor in the approach to this case is the prosecutors’ desire for a prompt trial. It has had the evidence in the case for many years and the quicker it moves along the less preparation time for defense counsel. Defense counsel on the other hand wants delay in order to be as prepared as possible but also because it benefits its 83-year-old client who will never get out of prison and right now is as comfortable as he can ever expect to be.
The Judge Has Not Grasped Its Uniqueness: In September she was sympathetic to the defense arguments about discovery. In October she no longer wanted listen insisting that the trial date was firm. She has done nothing extra to resolve these issues. I’ve suggested she should have appointed a mediator to do this since the parties cannot do it between themselves. This is an unusual step but this is an unusual case which the judge does not seem to recognize. The judge surprised most present by accusing the defense attorney of “crying” and “grandstanding” because he pushed for better discovery while giving short shrift to his attempt to explain the problems he is facing in handling the discovery. Her words indicated an impatience and displeasure with defense counsel which sends out a message of the judiciary favoring the prosecution and joining in with the overwhelming public sentiment.
My Take: The discovery problem should be worked out by a mediator or considered in greater depth by the judge. If not, there will always be the idea the case against Whitey was rushed to judgment. I’ve noted the public at large (including the judiciary) has concluded Whitey is guilty. No appellate court will reverse his conviction. This is the type of situation where the judiciary should avoid diktats. Rather it must take extra steps to be certain Whitey gets an absolutely fair trial. It should not be swayed by the public sentiment or the push of the media. It should accept defense counsel wants delay and the prosecution speed but its job is to provide such a notorious defendant a trial that is above criticism. Fifty years from now we want everyone to see that Whitey received a fair trial and was not railroaded. We don’t want what happened in the Sacco and Vanzetti cases where fifty years later Governor Dukakis declared they were unfairly tried and convicted and that “any disgrace should be forever removed from their names.”
Front page story, USA Today, 10-08-12: “Crimes by ATF, DEA Informants not Tracked.” The subheading: “No tally on how often Feds OK breaking of law.” Next to the headline, above the fold, is a picture of James “Whitey” Bulger and a column about both him and informant Mark Rosetti, whose name, without picture, appears below the fold. The article quotes Congressman Steve Lynch. Congress is in a pickle, as it gropes for standards on informants. The article says the DEA has about 4,000 informants. Does the DEA expect that these informants will stop using drugs or stop dealing drugs once they become informants? If so, the DEA will end up with very few informants. This is the dilemma confronting DOJ, FBI, DEA and AT&F; their guidelines are murky and oftentimes impractical. Back in the 1970s and 1980s the guidelines were worse and the practice in the field apparently was to interpret the guidelines liberally and wing it. Even Black Mass (2012) p. 52, (Black Mass,the novel, which at every turn casts John Connnolly in the blackest light possible) Even Black Mass mentions an “escape clause” to the guidelines and notes “the discretion to permit criminal activity rested with agents in the field, like Connolly, Rico and Condon.” One guideline I recall reading said informants could not “plan” to initiate criminal activity. What if they were already engaged in ongoing criminal activity? Whatever the guidelines say or said, criminal informants will continue to commit crimes. If they cease criminal activity and disassociate from criminals, they’re not useful as informants, unless they’re in jail. Be all that as it may be, this front page story in a nationwide newspaper, USA Today, fortifies your viewpoint that the Federal Court in Boston better be extra careful to make sure Whitey gets a “fair trial”. The eyes of the nation are on Boston. A Kangaroo Court and a “rush to judgement” wont cut the mustard. In my humble opinion, there’s enough stench coming from Boston’s Federal Courthouse over the last decade or so, that jurists and prosecutors should make every effort to avoid “even the appearance of impropriety.” Maybe “motions for a fair trial”, as oxymoronic as that notion is, will become necessities in Boston courthouses. Carney is stuck on the horns of dilemma: if the Court orders him to submit motions before he’s had time to pour through all the documents, he’ll be accused of legal malpractice; if he refuses to follow the court’s unduly truncated schedule for discovery, he’ll be held in contempt of court. We’re back to square one: Where is the redress when the courts and judges themselves refuse to follow the Constitution’s fair trial provisions? Thank you for bringing these important issues to the Nation.
What can I say except most of your points are well made. Thanks for that article. You should read my book which I hope will be out by the 15th. Thanks for writing. By the way, Neal’s suggestion that BC hire Coach Spaziani is still one of his better ideas.