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.