Trekking Toward The Truth – A Journey With Others Over The Road Less Traveled

Originally dedicated to the vagaries of matters involving Whitey Bulger and the FBI but now expanded into more general topics.

TTTT - Trekking Toward The Truth – A Journey With Others Over The Road Less Traveled

Boston Cops and Unsolved Homicides: Is There Something Rotten in Boston’s Finest?

smoking-gunThe Boston Herald over the last week or so has made much ado about the unsolved homicide cases in the City of Boston. A headline on July 28 read: “Boston lags behind U.S. in solving murders.”

The first few lines read: The Boston Police Department is carrying a grim ledger of 336 unsolved murder cases from the past 10 years — a period that saw the city consistently lagging behind the national average for cracking slay cases despite repeated changes in strategies and leadership, a Herald review found. The stunning total of unsolved cases encompasses 2004 to 2013, . . . killed 628 people across the dozen neighborhoods patrolled by Boston cops”  (my emphasis)

The article then went on to show the homicides occurred at a much greater rate in black neighborhoods: “Black men were slain at 10 times the rate of white men” and “More than two-thirds of the city’s murders were committed in Roxbury, Mattapan and Dorchester” which are predominately black areas.

Then it put a little bit of a hit on the Boston Police: “Of the city’s 628 victims, 410 were black males and 38 were white males. But police solved only 38 percent of the murders of black males compared to 79 percent for the slayings of white men.” Overall, it noted that “police arrested, charged or formally identified suspects in 47 percent of the homicides.

As an aside a close friend of mine was a Boston police detective in homicide for many years. I’d talk to him off and on about his work. For him the race of the victim never made a difference, he was driven to solve all the case he had handed to him. I had that in mind reading the article and wondered if we were getting the straight scoop. For sure all the statistics may be right but are they telling the correct picture?

You’ve heard the old saw about comparing apples with apples. For instance in comparing unsolved murders rates you could on one hand compare Boston (646,000 population) to Memphis (653,000) or Baltimore (645,000). It would look pretty good if you looked at the list of the top ten cities in unsolved murders: St. Louis, Oakland, Memphis, Birmingham, Atlanta, Baltimore, Stockton, Cleveland and Buffalo. Boston’s not among them.

On the other hand in Seattle,(652,000) 8 of 26 homicides committed in 2012 were unsolved by the end of that year giving it a rate at least in the low 30s or even less since it might have solved others after the end of the year.

Another way to look at things is to consider them from a state wide perspective. If you compared the unsolved homicide rates in Massachusetts (43.8%) with Idaho (3.9%) you’d worry that something was drastically wrong; if you compared it with Rhode Island (42%) you’d figure it was about right; if you compared it with Washington, D.C. (56.1%) or Illinois (55.4%) or even New York (44%) you wouldn’t be too unhappy.

The last cited report on the states noted: Despite dramatic improvements in DNA analysis and forensic science, police fail to make an arrest in more than one-third of all homicides. National clearance rates for murder and manslaughter have fallen from about 90 percent in the 1960s to below 65 percent in recent years.”

Boston’s unsolved murder rate is far from “stunning. Comparing Boston, a city with a black population of 24.4%, against the national average where 12.6% are black is an obvious skewing of the facts. It is totally misleading since compared to other cities similarly composed it is doing an all right job.

Putting it on the Boston Police and hinting that they are not doing their best because a black person was murdered rather than a white person is plainly wrong. It’s like blaming teachers for the failure of students to perform when the poor kids are coming from homes that destroy any incentive to study or learn. Scapegoating those who work in the public sector is easy; what is hard is looking for the source of the problem and putting the blame where it rightfully belongs.

On Friday Mayor Martin Walsh met with a group of women who have had their close relatives and friends murdered. To his great credit, Walsh listened to them express their grief and offered what solace he could. He has come up with some ideas that he will work with the police department to implement. Probably the best being the institution of more surveillance cameras in the so-called “hot spots.” Despite the expected outcry from some civil libertarians, such as the NAACP president who is reported to have made a statement I have a hard time following, “street cameras should only be utilized to solve violent crimes and not to harass residents,” we have to keep in mind that the Tsarnaevs might still be walking the streets of Boston without them.

If you want the police to be most effective, give them the best tools to work with. If there is something rotten in Boston it’s the fact so many blacks have been murdered. That fault lies far beyond the ability of the Boston Police to stop.

Boston Globe’s Yvonne Abraham’s Batty Belief ‘Bout Patronage

P1010073It is amazing how they all march to the same tune. Did you ever notice that once the Boston Globe decides a position then all the employees dutifully follow along especially those on the editorial staff. This was again shown on Thursday when I happened to read an article by Yvonne Abraham.

You know the background to all this. The Globe did a Spotlight Report on the practices of the Massachusetts probation department. It demanded they be investigated. The state judges duly followed the demand. After a biased investigation the Probation Commission O’Brien was canned.

The Globe demanded that O’Brien be indicted. He was by the attorney general. He won that case. And by the US attorney, who was the Globe’s “Bostonian of the Year”.

O’Brien went to trial in early May and was convicted in late July. His offense was hiring people recommended by legislators and judges. This has often been called patronage but the US attorney turned it into some type of mail fraud offense. (Be careful what you put in the U.S. mail.) After listening to a multitude of witnesses in a case stretching out for months, the jurors figured something more than patronage was involve so they convicted O’Brien.

Marty Walsh, the mayor of Boston, steps into the fray and doesn’t take the Globe’s line. He suggests O’Brien was wrongly convicted. He says all he engaged in was patronage which was a time honored tradition in the United States and on Beacon Hill.

The Globe obviously took affront to his statement. It needed to strike back. Abraham was given the job of taking the first hit at him. Expect others.

Mayor Walsh has yet to understand that the Globe believes it runs Boston and that crossing it will be damaging to his career. You can expect, and I’d be willing to place some of my dough on this, that the Globe will oppose Walsh if he continues to disregard its position when he runs for re-election. Abraham’s shot across the bow is a reminder that every opportunity it gets to damage him it will seize onto with glee until he heels, or is it heals.

Abraham writes that Walsh can’t get the legislature out of himself because he defended O’Brien by suggesting he was only doing the bidding of legislators and judges. She writes: “Oh, brother. I love that this mayor can’t help but answer a question honestly.” Then she goes on to express her dismay at his honest statement that he believed O’Brien was wrongly convicted because it drives me batty that he and so many Beacon Hill types see what O’Brien did as just politics as usual. When actually, what he did was — and now it’s official — criminal.”

We all know he was convicted but that doesn’t mean it was right. It’s not official until his appeal is over. We also know that prosecutors can indict a ham sandwich since almost everything we do can be manufactured into a federal crime; we also know juries can be wrong especially if they have to sit for three months watching and listening to a prosecutor putting the ham sandwich together. As I noted before, they have to have figured that the guy must be guilty of something if it took that long to try him.

But here’s the nub of Abraham’s going batty. She tells us that Probation jobs aren’t like jobs shelving books in a library or working metal detectors in a courthouse.” (The latter jobs the judges fill by patronage and they get a pass.) In Abraham’s world whether patronage is criminal or not depends on the type of job that is being filled. If it is a run of the mill job then patronage is all right, if it requires a little bit of skill which may involve dealing with people then it is wrong.

She has conjured up a crime that has no basis in law. It seems to me that patronage is either legal or illegal. You can’t have something that’s both. You can’t have something that becomes a crime at some mysterious red line that is decided upon by a prosecutor. Criminal laws are supposed to be interpreted strictly, not in the loosey-goosey manner Abraham suggests.

And, as for patronage being OK for dumbed-down jobs but not for those that are, to use Abraham’s word, “important”, it would be nice to hear what Abraham thinks of the job of many of the judges who sit on the bench or many of the ambassadors who represent America in foreign countries or the appointments to US Attorney. If they are important jobs, as they seem to be, is she suggesting that those patronage appointments were criminal acts?


When A Lovely Flame Dies Smoke Gets In Your Eyes

1978_Virginia_Slims_adI’ve been intrigued by the lack of input by women on some issues I’d have thought would pique their interest. I think I’ve figured out why this has happened. I recognize that since I was around during the great revolution I expected more of women; I expected to see some sparks from them. I remember the days when the attitude toward anything though inimicable to a woman was “this too shall not stand.” Those were the times when a man who dared refer to a female as a girl was putting his life in great peril.

Two matters of recent interest had me thinking that women would be interested in them. One is the story about Patricia Campatelli who is clearly being deprived of her job because she is cut from a different jib than other women; the other is the story of young college women who are shut out of the criminal justice system by the unwillingness of the state to mandate that their complaints to college officials about being sexually assaulted be passed on to law enforcement authorities.

The great revolution I refer to was the silent and perhaps greatest revolution in American history that took place in the latter half of the 20th Century. It was that of American woman demanding her rights. This changed the face of the country and brought about enormous changes in the status of women. I can give anecdotal evidence by noting that in my law school class the percentage of women was about 2% while now they make up more than 50%. But a better picture is gained from the actual statistics and other observations.

In 1970 43% of the women participated in the labor force; in 2010 the number was up to 59%. More significant is the educational attainment: in 1970 about 33.5% of women working didn’t have high school diplomas and in 2010 it was down to 6.8%. The number of women in the work force with some college and college degrees went from 23% in 1970 to almost 68% in 2010.

More telling are the numbers of women who have received advanced degrees. The estimates are in engineering in 1970 less than 500 to over 10,000 in 2010; in medicine and law from 2,000 to 15,000; in business from 1,000 to 35,000 during that same time period.

Harvard gives an excellent picture of the change in women’s status. It was not until 1948 that Radcliffe students could enter Harvard classrooms. In 1970 the ratio of men to women admitted to Harvard was 4 to 1. They did not reach parity until 2007.

Founded in 1636 it took it 312 years before a woman became tenured on its faculty. By 1970 it had tenured two other women. In 1972 there were 752 professors across the university and only 14 were women, 7 of whom were in public health or education. In the fall of 2011 in the Arts and Sciences of the 549 tenured faculty, 120 are women.

I suppose like all revolutions the passing years caused those with the ardor and passion to light the barricade fires to become wan. The young women with fires in their bellies who rose up and demanded their rights were in their 20s, 30s, or 40s in 1970. Betty Friedan who was 42 when her 1963 book The Feminine Mystique started the rumblings died at age 85 eight years ago. Those who are left standing are now in their retirement years.

Now those who have risen to the top and enjoy the perquisites of their new status are not those who had the gumption to march and throw bricks against the plate glass windows blocking change. They’re of a different breed. They have benefited from their fighting sisters even though they lack the zeal necessary to bring about a revolution. These women now would be put off by the saying “you’ve come a long way baby” that inspired the revolutionaries, especially since it was created by a cigarette company.

The women see no need to fight for things anymore. They see others like themselves have done well. They see themselves as part of the establishment. One does not revolt against oneself. They believe the system that now exists may have its injustices, like the double standard toward a Campatelli; or the hiding of the ongoing sexual assaults reported by college women, but that is of little concern to them. They’ve been coopted by the establishment because they now are a major part of it.

The women I knew in the incipient days of the movement liberally sprinkled the F word for emphasis (something I couldn’t do) and kept up with if not surpass us men on our occassional (was it weekly?) forays into a night of heavy smoking and drinking.

Perhaps Campatelli’s sin was she was born too late. As for the coeds, since women have gained nice positions in academia they’d prefer not to rock their college’s boat. That means they keep within house the happenings on campus.

I guess I just have to remember that the revolutionary flame has died; in so doing its smoke has clouded the eyes of those who benefited from it. They can’t see that the fight should go on. There are many still standing outside in the cold.















MA Supreme Judicial Court Strange OK To Upskirting

skirtThe Massachusetts highest court is the Supreme Judicial Court (SJC). Understand that justices on that court have an ethereal existence which sometimes affects the way they decide cases. Their interaction with the rest of us is quite limited and they spend most of their time talking to each other reinforcing the righteousness of their ideas. Two recent decisions that it pronounced makes one wonder where the judges hearts are. These decisions suggest to me that they need to spend a little time finding out how the rest of us live.

Judges should decide things with the understanding of the effect their decisions have on the lives of us individual blokes who go about our way rubbing shoulders with others like ourselves. What we need, which these SJC justices seem not to grasp, was spelled out by Judge Elijah Adlow, the long serving judge who handled the first session of the Boston Municipal Court where he encountered the smell, spell and swell of everyday city life. He summed up his philosophy in a few words: “the whole point of culture [is] to give everyone peace, quiet and the right to enjoy life.” He made his decisions based on that ideal.

Enjoying life sometimes amounts to no more than sitting on the back steps of a three-decker having a beer and a thick slice of pan-fried spam sitting between two pieces of classic white Wonder bread. It is being able to go to bed and get a good night sleep without being bothered by the blaring radio from outside. It is the ability to park your car on the street and expect it will be there in the morning. It is the need not to be burdened by those under the influence of some behavior altering substance or being able to walk home from the nearest T stop without being hassled. It is knowing your kids are safe when they go outside and that when they go to school they’ll have an environment in which to learn. It means being able to ride on public transportation without being bothered by perverts.

Anything that goes to advance our peace, quiet and right to enjoy life should be encouraged; anything that works against it should be prevented. If we consider that judges decide what the law is, in other words most cases can just as well be decided in the opposite way from which they are decided, then when a court makes a decision it should have in mind what is best for the peace of the people. In the two cases I am talking about, that seems to be the last thing on the SJC’s mind.

The cases are Commonwealth vs Shabazz Augustine and Commonwealth vs Michael Robertson. For now I’ll discuss the Robertson case where the SJC decided that a man taking pictures up the skirts of women on an MBTA train did not violate a statute that everyone thought prohibited such activity. The statute read, as applies here: “Whoever willfully photographs, . . . another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, . . .” shall be punished.

The SJC said a woman sitting on a train was not partially nude. To be partially nude it said she would have had to expose either her breasts or genitals. It read into the statute the word expose, that is the woman had to openly expose those private parts. It said “we understand a person who is … partially nude” to denote a person who is not wearing any clothes covering one or more of the parts of the body.”

I guess a woman wearing a skirt without underwear who has her skirt uplifted by some pervert may not be partially nude or does it depend on how high the skirt was raised. Or a woman with a low-cut blouse and no bra bending over to tie her sneakers and exposing her breasts under her blouse would also not be partially nude.

That makes no sense. The SJC could just have easily said that if a woman attempts to hide her private parts under a skirt or blouse and if someone secretly photographs those private parts they have been exposed and she is partially nude.

To understand why the conclusion of the court is faulty, take the woman off the MBTA and put her sitting in her private office at her table-like desk. A pervert is sitting opposite her with his cell phone camera pointed underneath the desk in the direction of her genitals. If she is wearing a skirt the pervert can’t be prosecuted; but if she has no skirt and is naked in the genital area then he can. So a woman in that position is required to discretely undress in order to have the pervert commit the crime. Or assume a woman in a revealing negligee is sitting in her bedroom and the pervert is photographing her from under her pulled down shade. That would be all right according to the court. Does that make sense?

Likewise the SJC could have found a woman has the expectation of privacy for those parts of the body she covers no matter where she is even on the MBTA. Why are greater protections given to the women who can ride in a car to work than those who must use public transportation? The circumstance is being clothed and the place is one where one would normally be dressed. Had the women exposed her breasts on the MBTA then she would have no expectation of privacy whereas if she did it in the confines of a private space then she would.

The SJC should have decided a woman becomes partially nude when someone violates an area she intends to keep private with a camera and a woman who is dressed covering her private areas has an expectation of privacy. Fortunately the Legislature outlawed the conduct which was at issue here. The governor quickly signed the legislation.

The SJC in deciding the way that it did deprived working women who rely on public transportation the right to have some peace and quiet. That, after all, is what it should not be doing. As you can see, it would be nice if it climbed down from the clouds to see how the hoi polloi lives.


A Warning for Those Indicted in Boston’s Federal Court

Florida JusticeEarlier today I wrote about how the judge in the federal court, Judge F. Dennis Saylor,IV, seem to be dismayed because defense counsel John Amibile and others are putting up a real fight on behalf of their clients. He noted he was unhappy. Apparently defense counsel must perform in such a way so that they do not do anything that would upset the judge. The client is supposed to be satisfied with everyone playing nicey-nicey and end up going off to prison happy that the judge did not have to referee what Judge Saylor found to be offensive and what he called a prize fight.

It must be that in the great majority of the criminal cases in the federal court in Boston the defendants are represented by those like the federal defenders who buy into the idea that a criminal trial is some type of preliminary exhibition match. Blows are thrown but most are pulled because the parties know they will be soon be matched up again in the same pit before the same referees. If that is the case, then one has to wonder about the effectiveness of their representation.

If one gets stuck with not being able to have one’s lawyer of his choice it seems clear that person is in great difficulty. I mentioned the huge costs of Whitey’s defense. That seems to be the enormous problem facing any defendant. Some defendants believe they have deep enough pockets to hire their own counsel but often they find out it was not deep enough.

One such defendant was Aaron Swartz. Poor Aaron was an idealist who was indicted by the Boston federal prosecutors and when he didn’t plead guilty and make it easy for them they increased the charges against him. He was facing charges for stealing scholarly papers off of the internet. The penalties piled on him called for 35 to 50 years in prison. We later learned that the prosecution said it would have recommended six months if he entered a plea of guilty to a felony. If that was the case, why was penalty upped with a superseding indictment.

It seems to me the prosecutors are oblivious to the effect that their indictments have on the lives of people. Some people can do six months in jail standing on their heads; others feel that such a time is a lifetime. Aaron was one of the latter. As you know this brilliant young man committed suicide. His girlfriend gave us an insight into this. Here is what she said:

“I don’t know exactly why Aaron killed himself. I don’t know exactly what was going through his mind. If I had known those things on January 11, if I had even known the right questions to ask, maybe I could have stopped him. Since January 11, I think about it every hour of every day. . .

I believe Aaron’s death was caused by exhaustion, by fear, and by uncertainty. I believe that Aaron’s death was caused by a persecution and a prosecution that had already wound on for 2 years (what happened to our right to a speedy trial?) and had already drained all of his financial resources.

I believe that Aaron’s death was caused by a criminal justice system that prioritizes power over mercy, vengeance over justice; a system that punishes innocent people for trying to prove their innocence instead of accepting plea deals that mark them as criminals in perpetuity; a system where incentives and power structures align for prosecutors to destroy the life of an innovator like Aaron in the pursuit of their own ambitions.”

She also put it another way:

“If on January 10, Steve Heymann and Carmen Ortiz at the Massachusetts US Attorney’s office had called Aaron’s lawyer and said they’d realized their mistake and that they were dropping all charges — or even for that matter that they were ready to offer a reasonable plea deal that wouldn’t have marked Aaron as a felon for the rest of his life — would Aaron have killed himself on January 11? The answer is unquestionably no.”

That is the quandary facing defendants being prosecuted by federal prosecutors in Boston who feel they are innocent. They take one of the lawyers who are part of the team; or, they hire their own counsel if they can afford it, as Aaron thought he could, but the result will be to pretty much to put them in the poor house.

The alternative, which apparently is followed by over 97% of defendants, at least in drug cases, is to plead guilty. (It seems to be 95% in non-drug cases.) Those that choose to go to trial are convicted at a 90% rate. I wonder if that is because they have the lawyers who are part of the system and play nice.

Timothy Lynch of wrote: “People who have never been prosecuted may think there is no way they would plead guilty to a crime they did not commit. But when the government has a “witness” who is willing to lie, and your own attorney urges you to accept one year in prison rather than risk a 10-year sentence, the decision becomes harder.”

William Young, then chief judge of the U.S. District Court in Massachusetts. and the judge who will be handling the trial of the probation officers said: “The focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused.”

So the bottom line for most of those indicted by the federals in Boston (other than the really bad guys) is to go broke by hiring one’s own attorney; take a member of the team who works with the prosecutors and judges all the time and won’t make too many waves; or enter into a plea bargain that is “heavily rigged against” him or her.

On the walls on the outside of the Boston federal court there are placards engraved with inspiring words of prominent Americans, most of them jurists. I noticed that there is room above the entrance door to that courthouse. I’d suggest another addition for those indicted by the Boston federal prosecutors. These are the words Dante Alighieri set out in his 14th-century epic poem Divine Comedy

Lasciate ogne speranza, voi ch’intrate

Translated they say: “Abandon all hope, ye who enter here.”[

Does An Aggressive Defense Prevent Justice Being Done? Appointing Lawyers Who Play Nicely

Florida JusticeLast Friday several newspapers wrote about the case involving the head of the Massachusetts probation department and two of his top aides who are in federal court facing penalties in excess of twenty years. The prosecutors indicted them not because they hired unqualified persons but because they did not hire those who the prosecutors believe are the most qualified. Instead, they hired those recommended by judges, legislators and others, practicing the time-honored tradition of patronage.

The three defendants in the case are middle age or over. None had a criminal record prior to the time on March 23, 2012, when as dangerous felons they “were led into their arraignments in Worcester federal court Friday handcuffed and shackled.” Over a year later in April 2013 the U.S. Attorney’s office in Boston increased the charges and penalties O’Brien and his co-defendants were facing when it became clear they would not plead guilty. This is a common tactic in that office. It likes to frighten people into facing enormous amounts of time in prison unless they plead guilty or in some cases if they cooperate with the government.

It’s all legal, of course. But the frightening thing is that there are an enormous amount of federal crimes available to charge people. The favorite crimes are the vague charges of obstruction of justice, bribery, mail fraud, money laundering and lying to a federal agent. These are often added on to a major charge so that many people who feel they have not committed the main crime but who may have stumbled by committing one of the lesser favorites will have no choice but to plead guilty.

John O’Brien, who had no criminal record, during the early stages of the proceedings asked that the judge appoint a lawyer who had handled his case in the state system in which he was acquitted. His request was denied. He could not get the counsel of his choice.

When Whitey Bulger was arrested he was appointed the best the counsel the court could find. He’s still getting lawyers appointed for him. How is it the judges bend over backwards for real bad criminals like Whitey, the Mafia types and even persons alleged to be terrorists like Tsarnaev but come down with a heavy hammer on those who get jammed in for the first time?

Anyway, I’m not sure who represents O’Brien now but his co-defendants apparently had the means to secure their own lawyers and are better off for it. It’s not that the federal defenders are bad for they are good. It’s just that as G.K. Chesterton would say they have become used to the system. They don’t see the individual defendant but just another one of the many who pass through all the time. Consciously or not, they are less likely to push the button of any of the judges by asking that they not sit on any particular case.

They know all the judges are buddies so putting one on the spot makes the rest wary of them. And in a system where much depends upon discretion and whim, that can work against other clients they may have. Truly private counsel’s first allegiance is to her client and she will usually go to the wall for the client.

Attorney John Amabile, the attorney for co-defendant Burke put everyone on notice he was not going to lie down. He said last April: “It’s patronage hiring, and they’re calling it a different name. It doesn’t change the landscape, and it doesn’t change our position. My client, a 72-year old retired grandfather who worked as a probation officer for 37 years, categorically denies that he committed any criminal ­offense.”

Apparently Amabile’s type of fight is not what is seen in Boston’s federal court when the federal defenders or approved lawyers are used. His willingness to go all out for his client is such an aberration that it caused the Judge Frank Dennis Saylor, IV to proclaim: “No judge can properly administer justice in the midst of a prize fight.  It shows how much the federal judges are out of touch with defense lawyers fighting tooth and nail for the clients when they rebel at normal hard advocacy, or as Peter Gelzinis described it “a buzz saw of defense lawyers who raised numerous body-blow questions.” J.W. Carney reminded us during Whitey’s case as he fought at times in a similar manner that is what defense counsel must do according to the oath they took. The judges prefer lawyers who don’t do such things.

When Judge Saylor denied O’Brien’s request to appoint the lawyer who had already won him an acquittal he said: “if O’Brien wishes to make application for court appointed counsel, I would entertain that application.” He then noted he had yet to complete his analysis of whether O’Brien is eligible for a government-paid defense lawyer. He was then quoted as saying that if he finds O’Brien is eligible he “must instead use federal public defenders or someone from a list of private attorneys who do court-appointed federal defense work.”

As far as being able to afford a lawyer, who out there who feels wrongfully charged can afford a lawyer to defend against federal charges. The defense costs in Whitey Bulger’s case are somewhere in excess of three million dollars and counting.

This presents the dilemma that if one wants to defend herself she must be content with those lawyers who are appointed by the court. She has no right to select who will represent her. I’m not suggesting that those appointed by the court are not competent and skillful but if you’re really in a jam you’d like to pick your own lawyer in the same manner as a rich person can do.

Defending oneself from prison or a felony record is as important as getting the right doctor to perform an operation. One likes to have a say in the matter. We don’t want a judge deciding which doctor will perform the operation. Why then do we limit the choice when it comes to lawyers.

Defendants should be able to choose lawyers who will make every trial a prize fight. For that after all is what it should be. It looks like that hasn’t been happening over the years because now that it is happening we hear a judge who has been on the federal bench whining that such a thing prevents him from administering justice. This is a sad commentary on our federal court system.


Denying The Obvious: Boston Bar’s Aid for Tsarnaev the Terroist

DSC_0541According to news reports last week  the Boston Bar Association (BBA) has come out against the federal death penalty. The BBA has had a long history of over 40 years of opposition to the death penalty in Massachusetts but the recent report was the first time it addressed the federal death penalty. One may inquire what prompted this new study of an old topic. In addition, one might ask why if it had never done so in its 250 year history it has suddenly decided to include in its report the federal death penalty.

Paul T. Dacier, elected to be president of the BBA in September, 2013, had ordered this review of the organization’s stance on the death penalty upon taking office. He included in it a request to determine whether the BBA should speak out against federal capital punishment. Dacier, the in-house counsel for EMC, made his request within five months of the Boston Marathon Bombing. Dacier’s view is that “without equivocation, the death penalty has no place in the fair administration of justice and makes no sense on a practical level. Regardless of how heinous the crime, we stand strong against the death penalty in federal and state cases.”

Yet, my great difficulty with Dacier’s BBA report is his attempt to suggest that it does not related to Dzhokhar’s case. Nothing recently had happened (except Dzhokhar’s actions) to make the BBA need to review its position.

I was not alone in this. Judging from his questions to Dacier, David E. Frank of the Massachusetts Lawyer’s Weekly made the assumption that the only reason for bringing out the report at this time related to the Marathon Terrorist Attack.  He interviewed Dacier about this on January 7, 2014.

Dacier said he came on board as president with the idea of having this review as one of his priorities. He said: “we, of course, are aware of what happened on the day of the bombing . .. but we did not start to review the policy of our opposition to the death penalty as a direct result of what happened on that day. We do feel that our policies ,. . . should be looked at from time to time and notwithstanding what happened it was a matter that  among others we were looking at and again I felt when I became president this was an issue that should be looked at.”

I find Dacier’s answer a little hard to swallow. I can’t accept it is just a coincidence. Dacier knew of the terrorist attack, he knew Dzhokhar may face the federal death penalty, there was a long-standing bed rock policy of the BBA to oppose the death penalty in the state, no need to review that or as Dacier said to “looked at” it, so why was it done if not to assist Dzhokhar? Why also was it done in such a way that the report came out at the time that the Attorney General Eric Holder was deciding whether Dzhokhar should face the same type of punishment he is charged with bringing about for three innocent people?

I’ve predicted there will be a ground swell of support of Dzhokhar. This act by the BBA is indicative of that. It seemed to me that the timing was just too coincidental for this age-old question to have come up at this time as Dacier would have us believe.

My sense is that Eric Holder will come out in opposition to the death penalty as hoped for by the BBA. But that will be a dreadful precedent. We must have a bedrock position that acts of terrorism on American soil which murder Americans will result in the terrorist facing the death penalty

I’ll never understand Dacier trying to hide that its action did not relate to the Dzhokhar case. If Dacier wants the BBA to do something positive, why not address the larger issue which is the United States’s execution of people on an almost daily basis without benefit of trial. Dacier should ask the BBA to address the drone killings by America of people with similar views as the terrorist Dzhokhar Tsarnaev, people who never have a chance to defend themselves. None of those people have murdered Americans but are being preemptively killed because we think they might be planning to do this. Whereas Dzhokhar is indicted for killing Americans and others on American soil. It seems to me that if we use drones to kill people who seek to commit terrorist acts against people on American soil, we should have not trouble having a person who actually is accused of committing such an act face the death penalty.

Further, where does the BBA stand on the overall policy of the U.S toward people who commit terrorist acts. There are ongoing trials at Guantanamo Bay where the federal government is seeking the death penalty against those who assisted in the planning of the 9/11 attacks. Does the BBA’s position on those cases mirror Dacier’s statement: “Regardless of how heinous the crime, we stand strong against the death penalty in federal” matters. 

I believe Dzhokhar Tsarnaev should have been treated like a terrorist and quickly taken to Guantanamo. Sadly, Obama and Holder didn’t see it my way. Now let us hope that the BBA and others who don’t understand that the prospect of the death penalty prevents trials such as Tsarnaev’s from turning into three-ring circuses aren’t able to have their naiveté compounded by the Administration’s failure to treat him as the terrorist he is alleged to be.



The Edward Snowden Affair: Hero or Malcontent?

SnowdenEdward Snowden turned 30 last year. He dropped out of high school in his second year and never graduated. Somewhat later he acquired a GED  degree. He did not graduate from college. He took some college courses yet he never seemed to have the sticktoitiveness to complete anything. I suppose he was bright because his computer skills were such that he was hired by the CIA to do computer security work and eventually stole our country’s secrets using those skills.

His inability to stick to things followed him as he seemed to jump from job to job. He worked in Switzerland for the CIA, left that and went to Japan working for an NSA contractor; then in January 2013 we find him in Hawaii. At this time he reaches out trying to peddle intelligence community information.

This is before he gets a job at Booz Allen Hamilton in a secure NSA facility in March. Two months later, in May, he bolts Hawaii and ends up in Hong Kong at which time the top-secret information he has stolen from the NSA is released to the media through Glenn Greenwald of the Guardian revealing the extent of the NSA surveillance programs.

There seems to be confusion over not only his education background but his work background as well as his 4 months (May to September, 2004) in the Army reserve where he alleges he broke both of his legs in a training accident. Some report he stole the NSA information after he joined Booz Allen in March which seems wrong since he was hawking it prior to that time. Jon Rappaport asks some of the questions that occur to me.

Which makes it strange that some are willing to have us begin to put him on a pedestal along with people such as Nathan Hale. The ACLU has called him a great American and true patriot as it solicits funds. Here’s a quote from its Executive Director, Anthony D. Romero: Edward Snowden is a great American and a true patriot. My colleagues and I at the ACLU are proud to be his legal advisors. We are committed to assisting him on legal issues he may confront. Thank goodness for patriots like him, who are willing to endure personal sacrifice to defend truths that we hold self-evident, but which too many Americans take for granted.”

If I asked one of my corner buddies I’ve no doubt any would respond: “He ain’t no great American or patriot.” I’d agree. I’m highly disinclined to put him in that class. Patriots should be made of sterner stuff; none I’ve read about have run away.

I have serious doubt the ACLU would agree with me but in my book the great Americans are those who wear our military uniforms and who put their lives on the line for our country. That the ACLU would praise Snowden as it did reminds me of the twisted mentality that happened during the Vietnam War. Robert Timberg in his book The Nightingale’s Song nicely describes this when he told of the thought process of those in the battlefields of Vietnam who saw their buddies being bloodied, maimed and killed saying: “Try as they might, they could not get it through their heads that those who avoided serving did so because of higher morality, greater love for their fellow man, or a sudden attack of religion on the Stockman model” (David Stockman went to Divinity School in 1968 when the graduate school draft deferment was abolished.)

In the article calling him a patriot the ACLU noted the decision of Judge Richard Leon saying what the NSA was doing was unconstitutional. I wrote that Judge Leon was clearly wrong in his conclusion. Last week another Judge William Pauley sided with me and found that the NSA was acting in accordance with our constitution,  Here is his ruling: 

President Obama assembled a Review Group on Intelligence and Communication Technologies to advise him on the NSA activities. It issued a report. The reporting on it has been quite skewed by the mimeograph machine media which seems content to thoughtlessly reproduce earlier reports written by others. The media’s coverage of the Review Group’s report was so bad that one of the group’s members, Michael Morrell, felt compelled to write an op-ed piece trying to clear up the confusion.,

Judge Leon is in the minority. Judge Pauley, the Review Group on Intelligence and Communication Technologies, the Congress Intelligence Oversight Committees and the FIFA court say it is constitutional. So have many courts that recognize what is actually being done. Tomorrow I will post my take on what NSA has done and explain why it is constitutional.

The ACLU has to put up the lone wolf Judge Leon so it can justify its elevation of Snowden to the heroic. But whether the program is constitutional or not does not bear upon Snowden’s actions. Snowden, in fact, can’t even be considered a whistle-blower since he was not disclosing a wrong; he was revealing an  approved intelligence gathering method which he happened to disagree with.

As for Snowden, we do know some things for certain. He published material harmful to the United States; he knew that would be the results of his actions; he fled to avoid facing the consequences of his actions, and he went to countries with the least freedoms who will greatly benefit from his revelations. He fails to see the irony that he is lecturing the United States on the right of privacy from a platform given to him by a country that denies its citizens any such right.

Snowden seems like a mysterious Lee Harvey Oswald; even stranger than Timothy McVeigh. Little seems to be really known about him. Few people have stepped forward who have claimed a close friendship with him. At this time he appears to be somewhat of an odd ball loner buttery-fly type jumping from one thing to another.

Hardly has he acted  like the hero. Even less so a great American. He started a debate over the NSA programs but he diminished our nation’s ability to protect itself. In my eyes he was confused and unhappy without even a few close friends who found himself stuck at a dreary desk job staring at a computer screen. He seems to have a lot of the traits of those males doing the school shootings. As we know a lone wolf is a particularly dangerous one.  He blames his country for his ills, looks for a way to strike back at it, and finds common cause with those as Laura Poitras and Glenn Greenwald who presents a view of America as a force of evil in the world.

Heavy on the naive side, he never should have been given access to the NSA information (which makes me wonder at the security of the nation); a warped thought process that makes him believe by making us less safe he’s accomplished a good. He has put himself into the hands of people who will use him for their own ends inimical to America’s interests.

Hero, far from it, much closer to being a malcontent.

I can’t leave without pointing out the ACLU is also fighting for the rights of Dzhokhar (Joker) Tsarnaev. It was concerned that he wasn’t being treated properly in prison. I suppose I should thank God, or as the ACLU would say “thank goodness”, that I’ve yet to read the ACLU has called Joker a great American and a patriot. The ACLU noted Snowden had a greivance but he was “too smart to expect real results from the “official” channels.” One could probably say the same thing about Joker. While we know the harm Joker has caused; it remains to be seen how many Americans will suffere because of Snowden’s actions.


An American Crime Story – Rewarded for Having a Man Murdered

smoking-gunIn Boston and its environs two cruel groups of men existed. They preyed upon others, most of whom were involved in illegal businesses themselves. They developed a system whereby they would oversee the illegal activities of others and provide security and protection for them in exchange for tribute payments. One group, LCN, consisted of men from a specific ethnic background, had relations throughout the USA with other criminal groups. The other, WH, open to all ethnic groups, confined its relations and doings with the local area. The two groups worked together when necessary but stayed out of the business of the other on most occasions.

This story is about WH, the group open to all. Its secret to survival was that two of its leaders. JB and SF, worked with a police outfit, FBI, and provided information to it against the group LCN. The police outfit had a dedicated national strategy which was to put the LCN out of business and was happy to have the help from the WH gangsters. To get the cooperation of JB and SF, the FBI made each one a TEI. This allowed the FBI to work with them and also to provide protection to them. The FBI assigned one of its agents JC to be the liaison with these men.

While the FBI used to the WH group to gain information against the LCN, the WH group was busy doing its own business. In providing security and protection it sometimes had to resort to violence. One of its members, JM, was particularly adept at doing this. He had started murdering people in his mid-twenties; he murdered anyone who presented a threat to him or his friends. Within the underworld this was widely known. At this time of which I speak, however, JM had left the city area and moved to Florida to avoid going to trial on charges which were pending against him.

WH’s business was going well and the future looked good for it. Preying on fellow gangsters was both profitable and wise. The latter because it was unlikely a criminal could seek aid from the cops so they insulated themselves well from having their business interrupted. Then, of course, WH had its insurance policy with the FBI which protected it in the off chance someone should want to complain.

Both WH and LCN attracted people called wannabees who like to associate with their members. One such wannabee was Cal who was quite an accomplished business person. He was president of a large firm that had locations in Florida and Connecticut. But he had this attraction to the wise guys. Because his business was the type that gangsters liked to take over or infiltrate, cops were continually checking on the people involved in it. This meant Cal should have been a little more discreet than the usual wannabee but he wasn’t. He was observed associating with the WH gangsters by some particularly observant cops. Having been so seen, he was required to relinquish the presidency of the company by its owner Roger. Roger was a highly successful business owner from the Midwest.

Cal brooded over this. Being a clever person he realized that the company provided him a nice income which he had lost. Determined to recover his loss, he came up with a plan to buy the company. He went out and tried to arrange financing. He could only come up with a certain amount nevertheless he went to Roger asking him to sell the business to him. Roger’s daughter said that they negotiated back and forth over the price but Cal could not seem to come up with the money.

Then Cal came up with a plan. He went to JM, the WH member who was in Florida. Cal asked him to murder Roger. He told JM that he would pay him to do this. Cal expected that after Roger was murdered then Roger’s widow would sell the company to him at a price he could afford. As I said, JM was in the murder business so he accepted the deal. He said he advised his WH friends that once it was over, Cal was going to give WH $10,000 a week to protect the company from the LCN, even though the company was not under any threat from the LCN.

JM and another WH member, Joe, did what Cal asked. JM murdered Roger by shooting him in the head. This was about the 13th unarmed person JM had shot in the head. After that happened, Cal paid JM $50,000. Cal then tried to buy the company but the widow wouldn’t sell.

The problem with the scheme dreamed up by Cal and JM was that unlike doing the usual business, that is murdering a fellow criminal, Roger was a legitimate business man. It was difficult for the cops to ignore this type of murder. Several investigations were started up. In Boston the WH group heard that Cal had been telling others about what happened. One person he told was Hal who was facing murder charges. Hal figured he could get a break on the murder if he implicated WH members, JB and SF. When JB heard that Hal was diming him out, he murdered him.

Meanwhile, the cop pressure was increasing. WH knew that it would see hard times ahead if it got jammed in on Roger’s case. They figured there was only way this could happen and that was if Cal was put under a lot of pressure and he coughed them up. They knew Cal couldn’t do the time so JM, Cal’s original contact, arrange to end Cal’s time on the earth by shooting the unarmed Cal in the head.

Years later JM and SF decided to deal for themselves and they offered JB to the cops so they could get a nice deal. JB was eventually convicted of many murders including those JM had done of Roger and Cal, and the one he did of Hal. The Judge ordered that JB pay restitution to the families of those he murdered. Roger’s family is to get six million.

If Cal had not been killed he would have been charged with Roger’s murder. He was the instigator of the act. He hired and paid the gunmen. He had Roger murdered. However he was hit by the hit man he hired. The judge decided that for his treachery the family of Cal who arranged Roger’s murder should be paid three million dollars.


Whitey Weekend Wrap: June 15, 2013: Photos, Guns, Bookies, Dreams

prosecutorsI truly think as strange as this may sound that the prosecutors have already won the case. I’d suggest they go back and review what they plan to do, cut it to the core and move on as rapidly as they can to the end so that the jurors will not forget what happened this week. prosecutor could rest and walk away with a big win.

The Photos. I noted before that Bobby Long got his revenge on Whitey getting away 33 years ago because he took photos and videos of Whitey hanging out with the mobsters at the Lancaster Street garage. You must conclude after viewing these that Whitey and Stevie Flemmi were together all the time and that some very despicable people kept them company like Larry Baione/Zannino and Danny Agiulos identified as Mafia bosses along with people who were top bookies.  Jump and shout as much as you want about federal corruption but it wasn’t federal corruption that had Whitey hanging around with all these many gangsters. This is one thing the jurors will bring home with them. The idea as set forth in Carney’s opening, and I think the thrust of his defense, that Whitey was not connected to the Mafia is very damaged. Now all the team of Fred Wyshak, Brian Kelly, and Zac Hafer (WKH) must do is to get that old FBI tape where Zannino said: “Us and the hill are the same thing,” and that should put to rest the idea Whitey is not a vicious gangster.

 The Guns: Tommy Foley the former leader of the state police showed up. He was picked on by Carney for not following up on the murders committed by Pat Nee, Howie Winter, and James Martorano. All the time Carney and he were crossing swords, a dozen or so machine guns and revolvers sat on the table in front of the judge. You couldn’t help but glance over to them at times and get the shivers. Foley spent a long time identifying guns – there were well over 50 of them along with assorted other criminal paraphernalia taken introduced into evidence through photographs aside from the ones that sat on the table staring back at the jurors. He showed they came from a hide (a closet hidden behind a wall) in a small one story enclosed gazebo-like structure behind Stevie Flemmi’s mother’s house which is separated from Billy Bulger’s house by a sidewalk that runs between both homes. Obama could adequately arm the Syrian opposition with the weapons seized.

The guns are already connected to Stevie Flemmi and both he and Weeks will come in and connect them to Whitey. In case the jury has trouble believing Whitey had a fondness for machine guns, etc., WKH showed that he had the same type weaponry seized at the time of his arrest in California from a hide in the wall. The jurors can’t help thinking over the weekend that the defendant James Bulger hung around with lots of criminals and had a fondness for machine guns.

Then Jimmy Katz stepped on the stand. I had indicted and convicted Jimmy at least two times in the past. He was one of the best bookies who ever picked up a telephone. He testified he was a bookie. Asked what his hobbies were he answers “gambling.” Here was a man who loved his work. I’ll write more about him in a later post.

Jimmy came across as a guy who was jammed in by the feds and was willing to cooperate with them to make a deal. But the real impact of his statement was he continually linked Whitey and Stevie together using their names interchangeably as if they were Siamese twins. He told how he was terrorized by them. How they changed the percentage the bookies charged from 10% to 20% – he called them the Bulger group – he said if you didn’t go along you’d end up in the hospital.

He met with Stevie Flemmi who told him not to let something happen or he’d be in trouble. He told how all the bookies he worked with had to pay a commission or rent to Whitey and Stevie or sometimes to George Kaufman who worked with Whitey and Stevie.

Jimmy’s a slightly built guy with a nice disposition as befits a bookie. I found him believable. Not at all a tough guy. The jurors took away from this that the guy in front of them was not James Bulger but was Whitey Bulger. He was partners with Stevie Flemmi and they were powerful enough to change the percentage and demand monthly rent payments and injure anyone who didn’t go along.

Then came Dickie O’Brien a life long bookie. O’Brien’s not a nice guy although his demeanor on the stand hides that. O’Brien testified how Whitey (again Whitey) and Stevie charged him rent. O’Brien first worked with the Mafia telling how he cleared it through Zannino; then he switched over to paying Whitey rent after meeting with Whitey and Stevie, Jimmy and John Martorano.  He knew Whitey was in a gang war in Southie and they shot people.

But Dickie found paying them rent made them useful to him. He’d take any of his agents who didn’t toe the mark in to meet with Whitey who’d scare them into following Dickie’s orders. It was like Whitey and Stevie were working for Dickie but whatever you thought of that, there was no doubt Whitey and Stevie inspired terror in other people.

The jurors in their weekends dreams will see Guns and Gangsters, Whitey and Stevie, and Threats and Terror. All the federal corruption in the world won’t make those go away.