Here are my rough notes on the hearing on the 5th. Sometimes you get a better feel for what went on if you can look at them and make your own decision.
The three prosecutors (Brian Kelly, Fred Wyshak and another) were at their desks by 2:20; defense counsel (J.W.Carney and Hank Brennan) arrived a little later at 2:35 pm. Carney was dressed in a light grey suit; the other attorneys wore dark blue suits. The US Magistrate Judge Marianne Bowler came in at 2:37. Brian Kelly spoke for the prosecution; to my surprise, Carney spoke for the defense — at the last status hearing most of the discovery was handled by Brennan.
The first motion handled was a request by defense to unseal documents that were pending before other judges. Bowler told them they had to go before the other judge who sealed the cases. She read from a prior decision to that effect. Carney suggested in one of the cases (Weeks) she could decide. She said she’d look at it again.
The next motion related to the appointment of Hank Brennan as an attorney for Whitey. That was allowed without objection from the prosecution. The final motion filed by the defense was for a court order to the lawyers in the civil cases to turn over to the defense certain documents and exhibits. The judge wanted to know what the defense had done to get them. It had done pretty much nothing explaining that without the backing of the court the other lawyers would balk at his request because they represent parties who hate Whitey. Bowler came back and said it would take 20 minutes to find out what documents they wanted and 20 minutes to write a letter so the defense should just do it.
Carney said he would try that. Bowler then indicated some of the material may no longer be in existence but Carney said the rules would probably require that it would be. He then said he expected to be back before the court on the issue because other counsel will laugh at him. Bowler responded they won’t laugh at the court if it orders it. Which seemed to be Carney’s point but he has to go through the steps he considers futile before coming back before the judge for assistance.
Kelly got up and said they already have what the civil lawyers would have. Carney said he didn’t have the exhibits. Bowler then told him to go and do his best. She added that she wanted him to file a discovery letter forthwith. Carney said he’d do it in a week. Kelly said he’d reply to it a week later.
Kelly then noted that in July defense was supposed to file motions. Further, after the last hearing defense didn’t do what the court wanted. Carney replied that he is still reviewing discovery and until he can figure out what he has he can’t file the substantive motions. He said he won’t be able to do that before May. He suggested the government has not acted in good faith because of the document dump (see prior post) where it’s requiring him to go through many times the amount of material necessary to find the relevant material. Carney said he wanted one copy of everything not many copies.
Bowler went back to what she has previously said that Carney wanted everything and that’s what he got. She said the trial date was firm. Carney said he want to put on record what is going on. Bowler responded testily that he has limited time to do it.
Carney said the government is causing the delay because 244,000 records are under seal so they can’t discuss them with other counsel or other civilians. Kelly popped up and said Carney could discuss any legal strategy he wanted. He indicated all Carney has been doing is complaining. He said Carney knows he can confer with anyone he wants it’s just that the government does not want the sealed matters handed out willy nilly. The government wants to know who they talked to or showed the documents to.
Carney complained that people won’t talk to them because they do not trust the government and that they fear their identities will leak out. Carney said 95% of the matters under seal don’t have to be sealed; he said 95% of the matters on the documents that have been redacted don’t have to be. He said it is unfair to have to face trial with this type of material.
Carney said he can’t file substantive motions without having seen all the discovery. He analogized for the judge: if you have a six-week jury waived trial and only heard the first three weeks and made your decision based on that you wouldn’t be doing your job. I’m expected to file motions without knowing all that’s in my material.
Bowler indicated he was “crying” too much. She keeps hearing the same thing over and over. The date is set for trial and its firm. Carney said he’d lose his license to practice law if he goes to trial unprepared as the court is suggesting he do. He explained this is an unusual case with so many sweetheart deals with government witnesses and he needs to go through the material to show they are liars.
The judge said that’s a jury issue.
Carney replied we have to find the inconsistencies in the documents, three occasions one witness gave three different answers, and we have to find the inconsistencies between witnesses. This is very labor intensive and the government wants to stop them from doing it.
Kelly spoke up and said defense counsel isn’t even following court orders by setting up meetings. He said the defense has received what it is entitled to do and has all the automatic discovery.
Bowler surprised they did not meet. Carney said he’d get the discovery letter in one week from today. He asked if he could continue to make his presentation. Bowler shot back harshly saying: file a motion! I’ve heard enough.
Carney asked whether he should file a motion for a fair trial. Bowler accused him of grandstanding. They went back and forth for a bit with Bowler raising her voice at Carney. Bowler then said she wanted to set another date. After first hearing November 15, she said no it was too far away. She settled on October 22 at 2:30.