An Interesting Year of Trials in the Offing

bzp032We have three trials in Massachusetts that will begin this year that everyone should keep an eye on. They will give a good view of the way in which justice is dispense and judges act.

The first to kick off is that of the probation officer prosecution of John O’Brien, Elizabeth Tavares and William Burke. They are facing penalties that could well exceed 30 years although anything near that is unlikely. When all is said and done if they are convicted they’ll get no more than a year or two, and even that would be outrageous. What will hurt most is they’ll lose their pensions.

Take William Burke. He has been a probation officer for close on 40 years. He’s a grandfather in his 70s with no criminal record who worked his way up over those years to a position close to the top of the ladder. He’s charged with racketeering, the statute originally designed to destroy the Mafia but broadened over the years to include almost any of us at the whim and imagination of a federal prosecutor. His crime is that he worked along with O’Brien and Tavares to give a leg up to people who were qualified to become probation officers who were recommended by judges and politicians over people without connections.

This case should be watched to see if the judge handling it, Judge William Young, lets the defense counsel try it the way they want to do. They hope to call every judge and politician who recommended a candidate as a witness to show that everyone knew how the system worked and there was nothing criminally wrong with what the defendants were doing.

Judges have great discretion on what evidence will be let in at trial. Remember Whitey tried to get in evidence that he was given immunity by Assistant U.S. Attorney Jeremiah O’Sullivan to the extent he could murder whoever he wanted. Judge Casper wouldn’t allow him do that.

The next on the agenda is that of Aaron Hernandez, the former Patriot football player. This case is interesting because of two issues that I see in the offing. One is the relationship between the prosecutors and the judge. From what I’ve read the judge has a past history with the prosecutors which has been somewhat bitter. She seems to be leaning over to the side of the defendant’s lawyers in the case which bodes ill for the prosecutors. Where judges make everyday rulings, if a judge leans one way or the other then it can adversely affect the side she leans against. This being a jury trial, the jurors take signals from the judges. If she shows ill will toward the prosecutors this will be a signal to the jurors that something is wrong with their case.

The prosecutors have asked her to step down from the case and she has refused. I’m told the prosecutors had also asked her to step down in another case which eventually was handled by another judge. You’d think in the interests of fairness in this high-profile case the Superior Court chief justice would pick up on this and put another judge in to hear the case

The other aspect of the case that may be interesting is the way the agents of the Commonwealth of Massachusetts (I believe it is the State Police) secured the evidence against Hernandez. I’ve read that they secured cell phone records and other digital type evidence. The Massachusetts Supreme Court has just come down with a ruling saying that the seizure of cell phone records without a proper warrant, unlike that which had been the traditional practice, is now unconstitutional under the state constitution. If the way these records were secured does not comply with the changed law they may not be admissible and the case against Hernandez might fold.

The final case is the Dzhokhar Tsarnaev terrorist trial in federal court.  This, of course, will attract those who have a grudge against the US for whatever reason and are lining up for the defendant. Judge Woodlock, who I believe was overly harsh in his sentencing of Whitey’s girlfriend, Catherine Greig, because he assumed she thought she was aiding a person who committed murder without any proof of that, is up against a group of defense counsel who will push and push. Unlike his buddy Judge Saylor who felt this conduct uncomely, Woodlock seems to have no problem with it and to this point, from all I can tell, has good control of the case. His idea of starting in November when the weather becomes a little nasty will at least keep away those who are “fair weather” disgruntled protestors.

But it will be worth watching not only because of the horrible crime that the defendant stands charged with but also because of the aggressive defense counsel who will push to the limit. Also, it is a death penalty case but matters relating to that will be decided after the defendant’s trial on the charges.

I’ll be looking to the coverage given by Dave Boeri of WBUR and Dave Frank of Massachusetts Lawyer’s Weekly in the federal cases and suggest you rely on them. Frank is very good at tweeting the happenings. Some of the other reporters may have a dog in the fight so they may not give the impartial picture that the two Daves will present. As for me, I’ll throw in my two cents as time goes on.

 

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