Whitey’s Appeal: Don’t Hold Your Breath

The New York Times writing about the 2nd Circuit Court of Appeals decision that came down on April 21, 2014, in a case said: “The decision reversed a January 2013 ruling by Judge Colleen McMahon of Federal District Court in Manhattan, . . . “ Did you notice anything about that which made you scratch your head? If not I guess it didn’t bother you that it took 15 months for a decision to be rendered on an appeal. But that’s what happens in federal court, things drag on forever. Just be thankful you’re not spending the time in the can waiting for the decision. Judges have no desire nor need for haste. I mention this because those who are wondering when the outcome of the appeal in Whitey’s case will come down must plan to be patient. I checked out the appeal and I have found the following: The case was entered into the First Circuit Court of Appeals in late 2013 – either late November or December. On January 15, 2014, the transcripts of the trial were filed. Then at the end of January, Whitey being broke, he asked that the court appoint Hank Brennan to handle his appeal. I guess this was approved. On February 26, 2014, another motion was filed asking for additional counsel to be appointed. On March 5 the court appointed James Budreau as additional counsel for the appeal and approved an interim payment to him to handle this matter. On March 10 additional transcripts were filed but these seem to be under some sort of seal. Also on March 10 the court set the briefing schedule, Whitey was to file his brief by April 21 and the government had 30 days to respond. On March 18 Whitey asked for additional time to file his brief, he’s in no rush since he’s never going to see the street again no matter what happens with the case. On March 24 the court entered an order requiring Whitey to file his brief by June 23, 2014, giving him a two month extension. The prosecutors will have until July 23 or thereabouts to respond to it. So the case will not be argued until some time in the fall. The court (three judges) will then read the briefs and consider the arguments, discuss the matter among themselves and will probably have a decision on the case some time late this year or early next year. When the brief is filed I’ll give you an idea what the arguments are. I assume the only one that you’ll want to hear about is Whitey’s expected complaint that the judge prevented Whitey from presenting evidence that he had been given immunity to murder any person he wanted to and that if he had already murdered people he got immunity for those murders too. I suppose it is even more than that, I guess he wants the Court of Appeals to take the position that not only did a former federal prosecutor give him immunity for all his past and future murders but also for all the other charges he was convicted of such as the gun and money laundering charges. His position is actually quite absurd. The only thing more absurd is the attorneys representing him will argue that a person can be given this type of immunity by a prosecutor. I don’t see the judges really given serious consideration to the argument. But what’s good about the Court of Appeals is the judges usually will patiently listen to anything that is argued unlike some other appeals courts where the judges will tell you straight out that you argument is absurd. I know that because I appeared before the First Circuit many years ago representing a local Teamsters Union that had appealed a finding by the National Labor Relations Board. Its appeal was totally without merit but the partner did not want to lose the Teamsters as a client so he told me, a young associate, to go forward with the appeal. I had little choice. I expected all hell to break loose when I made my pitch to the judges but they took it in stride, probably because of my youth, and sportingly let me off the hook without any tongue lashing. The attorney representing the other side was not so kind but that was to be expected. I remember it was during his argument that he seemed to delight in repeated pointing out the parts of my argument he described as “disingenuous.” Anyway, don’t expect much before the end of the year but it will be interesting to read the brief filed by Whitey’s lawyers to see what basis, or as we lawyers say precedents, they use to justify their quixotic argument.