On Whitey’s
Chances
I’ve talked how the Appeals Court will look for reasons to turn down Whitey’s lawyer, J.W. Carney’s petition for a writ of mandamus. The way it is set up now they won’t have to look too hard. I’ve suggested that Carney has to go for the jugular and not shilly-shally around the issues. For example, Carney in his petition spent a fair amount of space discussing how Judge Stearns’s refusal to recuse himself will result in the case being overturned on appeal.
He tells how difficult it will be to have to redo the case again noting witnesses will have died, the high expensive of the trial will be incurred again, memories will have become even less reliable, Whitey may be less compos mentis, the victims’ families will have to go through the agony of another trial and things like that.
Carney should understand those issues carry no weight. The Appeals Court judges are not going to reverse this case. When Whitey is convicted it’ll never be tried a second time no matter what error occurs at the trial level. These judges already have had cases before them where they have upheld monetary awards to victims of Whitey. These judges believe he is the personification of evil. They will be of no mind to give him a do-over trial. Carney has one shot and it is with the jury.
He’s flitted around the edges of securing relief from the Appeals Court but he now has to force, yes force, the Appeals Court to remove Judge Stearns. That won’t be done by talking about things that may not happen like who will be witnesses or what will happen if the case is reversed. It must be done by showing, as Carney did in part, that Judge Stearns sitting on the case will make it appear that the federal court was not interested in giving Whitey a fair trial but had as its purpose railroading him. He must also show the case is widely watched and cannot be hidden from widespread scrutiny.
The first step is to show the international interest in this case. It is being watched in Ireland and Britain because of Whitey’s connection to the Irish arms shipment that was undermined by an Irish informant Sean O’Callaghan and by Pakistani diplomats who knew of it and threw it in our face when we admonished them on Osama bin Laden being able to hide in their country.
Carney must show that many people in foreign lands are aware of the case and will be watching it closely when it comes to trial. The American federal system of justice will be on trial. We often lecture other countries about the deficiencies in their system and hold up our system as one to be emulated. Our judges travel around the world telling about our system of justice and suggesting others to do what we do. Their words will sound empty to foreign officials if it is seen that a judge with what appears to be a prejudice for the government is sitting on a highly watched case when it was not necessary for him to do so.
Carney must next show the extensive interest in the case throughout the nation. He alluded to this but in a cursory fashion. He must give some hard facts by showing the newspapers and coverage it has received. He should spell out the names of the papers and identify articles that have talked about it. He should tell how hearings on status reports or continuances without the defendant being present have packed the courtroom and afterwards upwards of ten news cameras waited outside the courthouse.
Doing this will make the Appeals Court recognize that the federal court’s reputation is at stake. That it should allow nothing to be done that will make it appear Whitey did not get as fair a trial as possible. Carney should then point out that already that there is a growing view among the public that things are not what they should be.
Carney did a fine job of showing this last point under section C of his petition. He tells how there is a general feeling that Stearns is not the right judge to be handling this case. He talks of a poll of lawyers, comments written to newspapers, of experts and an op-ed questioning Stearns’s decision to handle the trial.
He should then point out that Stearns’s state of mind is not what is important. Stearns might think he is impartial and free from any bias or prejudice and he probably is. But that matters little. It is what the public will think when they look at the case. I might think I can fairly decide an issue relative to people I am friends with or worked with yet I don’t think I could convince many people of this. We don’t let people sit on juries who have these close connection.
Carney has to demonstrate that the public perception that Stearns should not be sitting is based on substantial evidence that he is partial toward the government or that he is trying to cover-up something on behalf of others. I noted yesterday Carney did this in a general sense by telling of all the bad things Whitey is accused of doing. I said that was not enough because it did not show that during the time Stearns was in the U.S. attorney’s office in Boston that people in the office knew about Whitey and his criminal activities.
Fortunately for Carney he can make that showing. He can show the people in that office knew Whitey was murdering people, running drug operations and was otherwise a top-level gangster. These are people all around Stearns. Maybe Stearns is leveling when he says he knew nothing about it but the public will surely view him sitting on the case with a jaundiced eye.
Then, and only then, must Carney suggest that any decision Stearns makes will reflect badly on the federal judicial system in this highly watched case because people will have solid and substantial facts to show that people in the U.S. attorney’s office in Boston some of whom are Stearns’s friends knew about Whitey. Carney can then say it follows any decisions by Stearns will impact his friends.
Judge Stearns is now about to do decide on the immunity issue. If he decides that issue cannot go to the jury a widespread distrust of the federal judiciary will occur in this case. What will be tragic is that it is so simple to not have had to deal with this issue. That in itself makes one wonder why it is left to fester like this.
Tomorrow I’ll show how Carney can show the prosecutors in the U.S. attorney’s office who worked with Stearns in Boston knew of Whitey and his criminal activity.
Just questions:
1.)With respect to matters of conflict, isn’t typical that a financial interest in the outcome of a case can be used to demonstrate a conflict of interest or the appearance thereof such that a reasonable person would conclude a potential for bias?
2.)Did Mr. Carney ever explore that avenue? If not, why not?
3.)To that end, do federal judges file annual financial interest disclosures with respect to any and all interests, investments, pensions, trusts, employment they and/or their immediate family members hold or have held in the past?
4.)Do judges, prior to trial, have to disclose any and all prior or close associations (including but not limited to prior clerkships, prior employment relationships,schools,fraternal and social club organizations) with not just the counsel before them but with members of the counsel’s respective firms pertaining to any and all matters before them?
5.)If not, couldn’t that information be subject to FOIA?
6.)Would it behoove Mr. Carney to request that information by FOIA and do an analysis of the judges involved in the Bulger matter (both of them)with respect to prior decisions even on “seemingly” unrelated matters at first glance but that which have a common denominator to Bulger’s case and the respective outcomes of those decisions going back a few years?
7.)If that information isn’t available by FOIA, should Carney call a press conference upon publicly filing both federal and state legislation to make it available and seek to tack it onto on outside section of the budget in order to make it move faster through the legislative process while generating further attention?
Couple of other quick questions…
8.)Wouldn’t the public find it reasonable for judges to be subject to the same rules as applied to other public officials, since of course, they too are “public officials?”
9.)Or is it that attorneys “Won’t” ask for this information regardless for “fear” that they will offend the judge and thus the judge will find ways to rule against them, or alternatively for reasons of good ol’ fashioned “sucking up” to the judge? In other words, is there a fear of “judicial retaliation” or other reasons that insulates the judiciary from a full inquiry into the depths of potential conflicts of interest and/or the appearance thereof on their part in issuing a decision or insisting on overseeing a matter?
10.)Could the judiciary’s failure to remove both judges on the Bulger case(those officially assigned and those ‘conveniently acting behind the scenes’ without any accountability whatsoever)ultimately lead to the Bulger case standing as a landmark decision as it may launch a massive political debate on broad-scale Court reforms which may even include a Constitutional Amendment being proposed to require judges be elected similar to the legislature and the executive branch in order to ensure greater transparency in the judicial process? Could this be why they are all tip-toeing on eggshells?
11.)Or is it coupled with something else,and if so what? Given this possibility, the Bulger case might end up changing how business gets done in this country let alone the veritable “shape of the country” and its Constitution. To me, that sounds like a resounding worldwide “extensive interest,” one that would definitely effect, say, even the stock market, which seems to be the only thing that matters to a few “key” some, as well as the judges personal interests themselves.
12.Seriously – the judges need to ask themselves a question: Do those judges, Stearns (and Wolf) in particular, ultimately want their names and their legacies remembered as being the catalysts for potentially bringing down the entire judicial structure as it exists today and thus fundamentally changing the country that way? My guess is, something like that would surely get their attention.
But alas, it’s “their” call.
Alex:
1. Yes. If a witness will be compensated for her testimony it is a matter to be brought to the jury.
2. I don’t know what Carney is doing. But I’d have to guess from knowing his record and the people around him he is leaving no stone unturned and will be peeking into every crevice when it comes to the witnesses who will testify. We’ll see the answer to your qustion at trial.
3. I think they do. But I wouldn’t worry about the integrity of any federal judges. I’ve never had the slightest doubt of their righteousness. I may criticize their actions or judgments but not their moral character.
4. I don’t believe there is such a requirement. Most judges at a minimum will disclose all prior associations with the litigants or their clients prior to trial and will avoid sitting on cases where there is a question of their impartiality.
5. I don’t believe the FOIA covers judges. If it did to enforce a FOIA requrest you would have to go to the court and it is unlikely one judge would force another judge to comply with it.
6. If that step was available to Carney as aggressive as he is it would be unwise to take it. Personal attacks on judges are not part of the game. In this case especially there is no reason for it because Judge Stearns is pretty much an open book and no one has ever questioned his integrity. He’s been in government service all his life and subject to the scrutiny of his peers throughout that time.
7. Carney has the courage to do that but the wisdom not to. He’s still a young lawyer and has many years before him at the bar. He has to earn his living in front of the judges. I’m sure if he had a reason to believe somehow things were not on the up and up he would act but that is not the case here. Further, Congress which decides the conditions under which federal judges work would have little interest in it.
8. Maybe it would if it were paying attention.
9. In part there is that. Judges respect tough lawyers who fight for their clients, I’d suggest they don’t take kindly to those who are trying to embarrass them. When I was a young lawyer doing one of my first jury trials I was upset at the way the judge was ruling against my client. I foolishly argued to the jury in the heat of the trial that they shouldn’t pay attention to his rulings or something like that. I learned that the judge had the last word to the jury at the trial. Go to any bar association meeting and wherever you see a little crowd guffawing it up you know that a judge is at its center. A judge I will not name told me that he never knew he told so many good jokes until he became a judge.
10. If Judge Stearns is allowed to sit the decision from the First Circuit will be well reasoned and full of information justifying its action. The judges will make sure they issue a bullet proof decision. They’ll exercise their best judgments considering all the factors including they know of Judge Stearns’s fine reputation as a jurist which will carry much weight. Their decision will not have much of a ripple effect. Whitey’s case is a big deal around here and is blown way out of proportion by people seeking publicity. Nationwide most people have no interest in it so any real spill over outside of Massachusetts won’t be that great no matter what happens. Whitey’s just another criminal, not even as bad as those who will testify against him, whose popularity was blown up because his brother was a prominent man. The big problem I see with letting Judge Stearns sit is that it’ll give room for those down the road to question the outcome like what happened in the Sacco and Vanzetti case. I see it as an easy issue to avoid. Carney has said he’ll be happy with any other judge so I’ve said why not in this unique case assign another one. That’s probably the reason for the delay is that when asking Stearns to step down makes such sense why isn’t the court doing it.
11. I suggest you overestimate the importance of Whitey’s case. There are interesting aspects to it that spell out on the national stage like the involvement of the FBI with Whitey, FBI John Connolly being in prison for murder, murderers testifying against another blaming him for the murders they committed, and other things. But whether Judge Stearns sits or not is not of great significance. I’ve always said he’d be as fair as any judge and I’ve heard he is a good judge to try the case in front of. Especially now, Stearns will bend over backwards to insure nothing is done wrong. Maybe it was Carney’s ploy after all to put Stearns in the position of being extra careful to give Whitey a more than fair trial.
12. Judges Stearns and Wolf have excellent reputations. Wolf over a decade ago sat on these matters and no one questioned his impartiality. Stearns is being questioned because he worked in the US attorney’s office in Boston during the time Whitey was being investigated by his office. Stearns says he knew nothing of this. The issue is whether he did or not should he still sit on the case. I suggest nothing will change in the judicial system as a result of the decision by the Court of Appeals. Especially so, because if Stearns is allowed to sit at the end of the day no one will have any complaints about him.
Wow. Thank you! You’re blog is so informative and your responses are so substantial – and fast. Boeri should actually invite you to do a call-in radio show with him on WBUR if he hasn’t.
nhjustice.net is covering this Blog and posting comments. nhjustice.net serial readers are Global, which underscores the point of this Blog. The whole world is watching US Justice at work.
Jean:
You make a good point. I hope other people recognized this.