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Monthly Archives: February 2013
One thing we know about our system of justice is that wrong decisions are made every day. This is because it is a human system which does not provide for certitude. We have people who don’t really know other people making judgments about them based on a minimal encounter. Even though my career was as a trial lawyer, I’ve always believed it quite unnerving to be brought before twelve people and a judge, or a judge alone, to whom you are a complete stranger and have them make a decision about you. Even more so if it involves your freedom.
We have no system other than using other people to tell when a person lies or is telling the truth. Our system does not prevent a known liar from coming in and testifying. A person like Sally Slander may say a certain thing ten times and then can come back and testify to the opposite the next time. Someone like corrupt retired FBI Agent John Morris who testified as I’ve shown in my book Don’t Embarrass The Family that he lied over and over again, sometimes under oath, is allowed to testify in the same manner as someone who has never lied before.
Our system favors the glib over the taciturn. The former are used to talking and can carry it off quite well in front of strangers. Herman Melville wrote about this in his novella Billy Budd. Billy’s on a British ship-of-war and an officer, John Claggart takes a disliking to him. He accuses Billy of mutiny. When Billy is brought before the ship’s captain because of a speech impediment he can’t verbally defend himself so he’s doomed to walk the plank.
I mentioned how David Boeri and David Frank’s article Ortiz Under Fire got me thinking about other happenings in the justice system. I’ve told how I believe the cops are running the show in the Boston U.S. Attorney’s office. But there is another aspect to that story I’d like to speak about.
I’ve pointed out in my book Don’t Embarrass The Family how the evidence in the case against retired FBI agent John Connolly consisted in the main in two parts: a corrupt FBI agent John Morris who was Connolly’s supervisor testifying against him so he could save his pension and avoid prison; and three gangsters who made fine deals for themselves with the prosecutors to avoid spending the rest of their lives in prison or on death row.
The outcome of the Connolly trial which few seem to know is that the jury disbelieved all of the gangster testimony about John Connolly’s actions as an FBI agent. Martorano testified his gang gave Connolly a $5000 ring, he was found not guilty; Martorano testified he killed Richard Castucci because Connolly had outed him as an informant; Connolly was found not guilty. Connolly was accused of leaking information that Halloran was an informant, that Callahan would be pressured by the FBI, and that Baharian would be wiretapped. He was found not guilty of all. The charge against him of extortion of a liquor store also resulted in a not guilty.
The argument before the First Circuit Court of Appeals on whether Judge Richard Stearns should step down from handling the Whitey Bulger case happened on January 8 of this year. The issue seemed quite simple and clear-cut. It called for a yes or no answer. The judges on the panel were the most prominent that could be assembled in this area including a former Supreme Court justice and the chief justice of that court. I’m surprised that they didn’t agree within minutes of leaving the bench, give the answer, and offer a simple explanation for their decision.
It has now been a half a hundred days for the court to decide this. If you ever pause to wonder why it takes so long for anything to be done in the federal judicial system just remember this and you’ll have your answer. If you’re ever told, “why make a federal case out of it?”— you’ll understand better the expression.
I’ve had this feeling the federal system has been off kilter and walking to its own strange tune recently. Probably since the time of the Patriot Act. Watching developments since then I’ve had a weirdly un-American feeling that if a person is wrongfully scooped up by some federal agency she could end up being held for years or possibly forever before she could gain relief. The judiciary has become so deferential that all the executive has to do is shout that she is some sort of threat to the homeland and she won’t even get a hearing.
It appears that the powers of the executive utilized through the various police agencies like Homeland Security (why does that term sound so like 1930s Germany) have significantly increased while the judiciary has taken a laissez-faire attitude — “give us our paycheck and perks and leave us alone.” Combine that with its snail-like approach to handling matters leaves me feeling the judiciary has become less and less the preserver of our rights and liberties.
Over the last two days I’ve written about David Boeri and David Frank’s article Ortiz Under Fire. Boeri has been one of the best writers in the matters surrounding Whitey Bulger. He has approached the matter from what I’d call “an investigative reporter” point of view. He considers all sides and puts his long experience to use in arriving at his conclusions. Most other writers seem to line up on the side of the prosecutors and act as cheer leaders for them. I’ve disagreed with some of Boeri’s conclusions but appreciate his insights and ability to see the case through a different lens based on his skill as a reporter.
I know less of David Frank. He seems to be a gadabout going from one high publicity case to another and opining on them. I have no idea what his background is as a litigator or even if he’s ever been in the pit. Perhaps he’s seen enough by now to be able to separate the chaff from the wheat. Together Boeri and Frank produced a fine article well worth being read by every person especially those in the litigation business.
The reason I bring up their article again is that there is much more in it than meets the eye. It does what good articles should do and that is to make one reflect on it for what it says and what it doesn’t say. The gist of it to me is that the US Attorney is failing in her responsibility to insure that no person is prosecuted unless there is close to a certainty the person committed each crime that will be charged. The article doesn’t tell us why this is happening.
David Boeri and David Frank’s article Ortiz Under Fire was about three cases where the defense lawyers who won them suggested that had they been properly vetted the charges never would have been brought. To me, that’s a devastating charge. The consequences of being charged with a crime: destruction of reputation, depletion of assets to defend oneself, devastation of health, and direness of prison demands that no person should ever be charged with a crime at either the state or federal level unless the prosecutor is as close to certain as one can be that the person committed the crime. That is at the core of the being a good prosecutor.
For lawyers to suggest their clients should not have been charged and they prove it by having judges decide the evidence is so bad no reasonable jury could convict on it, is a serious condemnation of a prosecutor’s office.
Having strong evidence of a crime is but a first step. Other decisions are then required. First not all crimes should be charged. Next, the charges should reflect the crime and the person. It serves little purpose as we saw in the Aaron Swartz case where an otherwise law-abiding citizen known for his brilliance committed something amounting to little more than a prank ended up facing 35 years in prison and when he didn’t fold the charges were upped to fifty years.
I again refer to what Justice Robert Jackson told the US prosecutors. He said that a “citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.” He introduced that statement by saying, “The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway.”
How the mighty have fallen. Carmen Ortiz who enjoyed a Hollywood-like existence as the US attorney in Boston has tripped up and the gang is piling-up on her. Margery Eagan took a shot at her and now I see Dave Boeri and Dave Frank have followed up. I’m tempted to say welcome to the club.
I have criticized Carmen Ortiz based on several things she has done. I thought she was brutal in her recommendation of a sentence for Catherine Greig; was heartless in trying to steal the motel from Russ Caswell; and lacked discretion in bringing RICO charges against the probation officers who were merely doing the bidding of judges and legislators. I suggested her actions in the handling of the Aaron Swartz case a continuation of her lack of judgment.
Yesterday I wrote about what I thought was a solid performance by some of the assistants in her office. It so happened I did this in response to Eagan’s criticism of her. I tend not to like pile-ons. So seeing the new article by Boeri and Frank “Ortiz Under Fire.” I tended to be skeptical, especially since they were quoting some criminal defense lawyers, and my instincts were to defend Ortiz.
One thing that I have learned is that if defense lawyers are happy with the prosecutors then the prosecutors are probably not doing their jobs. Whenever a defense lawyer would tell me about what a great kid one of our young assistant’s was I always figured the lawyer had just taken the kid for a bath. That happened on occasion since the younger ADAs never had the experience of the criminal defense lawyers and were often bamboozled by them. It didn’t really matter that much because they weren’t handling the serious cases so society did not suffer by them having had their pockets picked.
Margery Eagan in the Boston Herald stepped forward to criticize what is happening in the US Attorney’s office in Boston. I was surprised at this because the two major Boston papers have been walking in lockstep over the years in protecting and praising that office despite what seemed to me to be in some instances an obvious horrible lack of judgment.
Ms Eagan deserves praise for her courage. She talks about the deal just given to ex-Chelsea Housing Director Michael McLaughlin who was earning hundreds of thousands of public money but was caught red-handed filing false reports about how much money he was being paid. The federal prosecutors have made a deal with this man who was putting in his pocket tons of money that could have been used to better the condition of the poor folk living in government housing. McLaughlin is hoping he can avoid prison where he belongs. He’ll get a “stay out of jail” pass if he becomes a cooperating witness for the government and gives it some juicy tidbits on which to chew..
It seems pretty bad to hear the prosecutors making a deal with this man. But a closer look at what the prosecutors brought about shows that it was a smart move. I’d suggest that rather than criticizing Ortiz’s office for that case, it deserves a little bit of commendation. It made a silk purse out of the sow’s ear. I say this because it seems to me the prosecutors had very little to work with but some had the imagination to turn McLaughlin’s actions into a crime.
What bothers me about the situation Billy finds himself in are the loose and disingenuous suggestions by newspaper people, and others who have formed an abhorrence of Billy with access to the media, that because of Billy’s high position in the Senate no one investigated Whitey.
No one asks these people, “What do you know of those investigations that were being conducted?” Or, more basically, “How many criminal investigations have you been involved in?” It’s the audacity of these people to aver to something of which they have no knowledge that smarts me.
That is so because I was in the DAs office and worked for years investigating organized crime. I knew what was going on. I did more wiretaps than all the other prosecutors in the state including the federal prosecutors combined for several years in a row. I know this because we were required to file with the federal government reports of these activities.
But if you don’t accept my word, accept that of Whitey. There are numerous reports on file by Agent Connolly where Whitey complains about only one district attorney’s office he said was harassing him. That was the Norfolk District’s Attorney’s office where I worked. He continually asserted we had a launched a vendetta against him. The animosity toward us was because of the electronic surveillance we had done and were doing against his operations. When Detective Dick Bergeron went to retrieve an electronic bug Whitey had found in his car Whitey lashed out at the Norfolk DAs office. If any entity in Massachusetts could ill afford to displease the Senate president who had control over its budget it was a district attorney’s office.
Billy Bulger was elected out of his senate district in South Boston to the Massachusetts Senate in 1970, ten years after he had been elected to the House of Representatives. In 1978 he became president of the Massachusetts Senate in which capacity he served until 1999, a total of over 17 years. Governor Michael Dukakis said of him: “There has never been any question about the integrity of the Senate since he has been president.”
I came upon an article in 1987 in the Boston Globe. A James Higgins from Vineyard Haven wrote to the Globe complaining about Billy being mentioned in an article about an incident between Whitey and some security people at Logan Airport. He said, “I just don’t see why it was necessary to mention Billy Bulger as Whitey’s brother in the article. I don’t see the relevancy. Sen. Bulger isn’t responsible for his brother, and in this case, his brother isn’t even charged with anything.”
The Globe Ombudsman Robert L. Kierstead responded to the letter in a column. The story was written on September 23, 1987, by Kevin Cullen, who just wrote a book about Whitey. Kierstead said: “The initial story . . . ran on the front page under the headline “Question: Just What was Whitey up to?”
On September 28, 1987 Cullen wrote a second story in the third paragraph he said, “Aside from the fact that he is the brother of Senate President William Bulger, what has distinguished James J. (Whitey) Bulger from the other local men whose first name is always preceded by the word “reputed” is his ability to avoid brushes with the law.” The Ombudsman questioned the appropriateness of repeating Billy’s name in the second story.
I’ve been away from the reevaluation of Whitey’s life for a week or so but I will return to it as soon as I can. Before going back to it during this week of Presidents Day I will write my thoughts about another president, Billy Bulger. I do so because I’ve thought of him after reading some articles in the New York Times concerning the resignation of Pope Benedict.
Billy got elected to the Massachusetts Legislature in 1960 and served there until the mid-90s. He left when he was appointed president of the University of Massachusetts. Billy’s political career was in the tradition of the old-time Irish Catholic politicians from South Boston, John McCormack, and Joe Moakley.
All were guided by the social teachings of the Catholic Church in their service to the public. Their ideas are far removed from those many have today. Ross Douthat said it a lot better than I could the other day. “the Catholic vision of the good society — more egalitarian than American conservatism and more moralistic than American” liberalism . . .” was the camp in which Billy pitched his tent. Today as Douthat pointed out, “Republicans are more likely to channel Ayn Rand than Thomas Aquinas, and a strident social liberalism holds the whip hand in the Democratic Party.”
Billy was strong in his faith and even stronger in his belief that as a politician his first job was to alleviate the sufferings of “them who have little.” Helping those in need was part and parcel of who Billy was. He knew where he came from. He knew he worked hard to achieve his good fortune. He knew others did not have his intellectual abilities, or drive, or skill with language but because he had these gifts he did not condemn the others for their failures but believed as he was taught, “there but for the Grace of God go I.” He worked hard to ensure the benefits needed by the least among us were provided to them.