A Mandatory Minimum Spat:

It’s reportedthat the Suffolk DA Dan Conley had a spat with the Chief Justice of the Massachusetts Supreme Court Ralph Gants over the issue of mandatory minimum sentences.  I have to side with Conley and that’s not because our names sound the same; nor, because I was an assistant DA for so many years. I do so for the simple reason that the need for mandatory minimum sentences came about because the members of the legislature who make our laws looked at the way the judges were sentencing criminals and decided they were not doing their jobs properly.

Justice Gants who by the way was the one who cleared Billy Bulger of any criminal involvement in the 75 State Street matter when he worked as an assistant U.S. attorney when Jerry O’Sullivan was acting U.S. attorney is reported to have said: As long as prosecutors, rather than judges, hold the cards that determine sentences, we will not have individualized, evidence-based sentences.”

That is so wrong that I do not know where to begin. Let me start with what Conley is reported to have said:  “Prosecutors who are making decisions on what sentences to bring and what charges to bring has driven down crime to unprecedented levels. It’s part of prosecutors’ toolbox, and I don’t know how anyone can argue with it.” That is true that taking much of the sentencing decision out of the hands of the judges and leaving it in the hands of the DA, an elected official accountable to the public, is the way a system should function and how it has always functioned.

We have always had mandatory minimum sentences for murder. I don’t think that Justice Gants is proposing the judges be permitted to ignore them and come up with “individualized, evidence-based sentences.”  If not for murders, why should they be allowed to do it for other crimes?

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Something’s Rotten in the Aaron Hernandez Case?

justice criesI wrote recently about the prosecutors in Hernandez case appealing a couple of evidentiary rulings by Judge Garsh to the Supreme Judicial Court (SJC). Justice Cordy who heard the appeal upheld Garsh. He may not have agreed with her but he knew that he was not at the trial and that it is difficult at best to try to evaluate a judge’s rulings in a piece meal manner. He was aware that tradition teaches that trial judges have wide discretion when it comes to evidentiary rulings. He also knew that to do otherwise than to deny such an appeal would be opening the door to others who might not like a trial judge’s rulings on evidence during a trial. This would result in bringing the trial system to a halt if a lawyer during a trial could run up to SJC every time he felt aggrieved by an evidentiary ruling.

That’s why it has become custom for appeal courts not to decide anything relating to a trial until the trial is over and the record complete. It can then review what happened in the context of the whole trial. If error is made, it can remedy it at that time.

The only problem with that is if the Commonwealth loses, that is if the defendant is found not guilty, then the case ends. The Commonwealth has no right of appeal. That is why the Hernandez case prosecutors took the highly unusual step of appealing evidentiary rulings by Judge Garsh which seem to them to be throwing the case for Hernandez.

I can only imagine their frustration that caused them to do something totally out of precedent. They had to know they would receive short shrift at the SJC. They also had to know that if things continue like they are, that if Judge Garsh keeps preventing them from showing evidence that they believe leads to a conclusion of defendant Hernandez’s guilt which they were relying on to show the jury, then Hernandez will walk.

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The Gardner Heist and FBI Lies: Part 2

Gardner - at racesStephen Kurkjian has written a book on the heist. In an article he gave a run down on the matter.  His story seems to revolve, like the FBI’s, around the idea that some loosely connected Mafia types like Robert V. Gentile had something to do with it. The FBI was trying to squeeze Gentile in 2012 (22 years after the theft). Those agents had information from someone in prison looking for a deal that Gentile had something to do with the robbery. How is it the FBI always seems to be like Monte Hall forever making deals?

These agents couldn’t get it through their heads that had Gentile known about the theft he’d had given up the information rather than go to prison as would any of the East Coast gangsters. He kept saying he knew nothing. He even said he wished he did know something about it because his family could use the five million dollar reward.

Despite everything in the world pointing to his ignorance of the heist, the FBI kept pressing on. Strangely it was able to get a warrant to search Gentile’s house 22 years after the heist. I guess on the federal side they never heard of staleness. On the state side the Hernandez judge found six weeks was too long a time to assume the defendant kept possession of the .45 caliber pistol he professed to own.

Gardner VermeerThe FBI lie occurred two years ago when the FBI SAC in Boston Richard S. DesLauriers announced that they had a high degree of confidence they knew who did the heist. I wrote about this before. I noted at the time in 2013 that when DesLauriers was saying this that the FBI agent in charge of the investigation had no idea who was involved.

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The Garner Heist and FBI Lies: Part 1

Gardner VermeerToday, March 18, 2015, marks the 25th anniversary of the art theft at the Gardner Museum in Boston. Even though the FBI told us a couple of years ago it knew who did it in truth it had no clue. Its futile guess probably had the real culprits rolling in laughter if they are still with us.

The problem with the FBI investigation is it got off on the wrong track and has been chugging away on it until the present time. It figured the heist was carried out by local hoodlums. It started by looking at Whitey, Myles Connor, and other local guys including some associated with an auto repair shop in Dorchester. Those latter were involved in dealing drugs and hot cars but really had nothing to do with art work.

The first and most obvious clue the FBI missed in going after the usual suspects was that this was not a usual art museum robbery. I figured that out. There was also one person in the FBI who also did. Lynne Richardson, who manages the FBI’s National Stolen Art File, is reported to believe the Gardner theft as unique in modern American history, because it involved planning, disguises, and deception. She is quoted as saying: ”This is the way they rob museums in Europe, not the United States, ‘so (the paintings) could be right there or way across the ocean.” 

Gardner - RembrandtThe selection of items stolen pointed to an involvement of someone with a certain sophistication in art as well as the suggestion that most of the stolen items were picked out prior to the theft.  13 pieces were stolen from three different areas. In the blue room on the first floor a small painting, Edouard Manet’s Chez Tortoni which was in a room among many others.

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The Aaron Hernandez Horror: He May Walk.

(1) out of stepIf you’ve been in the system long enough and tried murders and other major felony cases at the superior court level as I have you’d have been highly surprised, if not stunned, at reading about the government in the Hernandez case going to the Supreme Judicial Court (SJC) in the middle of a trial seeking to overturn an evidentiary ruling by the trial judge. It just doesn’t happen. I’d never seen it done in all my years. The chances for success are zero.

That told  me a lot about the case. The prosecution is in a panic mode. The judge continues to keep relevant evidence from the jury. The case is slipping away. I’ve written before that this would happen, here, and here and here. Important facts are being kept out of evidence. This has force the prosecutors to take this unheard of plea to the SJC telling Justice Cordy that Judge Garsh’s rulings: “will seriously impair the government’s ability to present its case to the jury and so deprive the Commonwealth of a fair trial.’’ Cordy turned a deaf ear to the plea. He had no choice.

Here’s some of what is going on. The prosecutors had evidence that a friend of Aaron Hernandez was in California with him. He would testify that Hernandez bragged about owning a .45-caliber handgun and having it with him six weeks before Odin Lloyd’s murder. Llyod was murdered with a .45 caliber bullet and the murder weapon was not found. Judge Garsh kept that out of evidence.

Hernandez says he has a .45 six weeks before a murder; he is present at the scene of the murder where the victim is shot with a .45; the .45 disappears. Would you want to know that as a juror? Without evidence of a prior showing Hernandez had a .45 the prosecutor cannot argue to the jury that the .45 slugs in Llyod could have come from the .45 Hernandez had possession of. He can’t make Hernandez the shooter.

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Irish Thoughts: The Magic is Gone

st-patrick-of-ireland_1424418476When the magic goes and the show changes it’s time to pull the show and the image connected with it.

Reading about the breakfast on Sunday at the cavernous Massachusetts Convention Center where 460 people were to attend it appeared the fun is gone. One paper published “fun facts” about the breakfast that seemed to far from my definition of “fun.” Descriptions of it after the event used the adjectives “maudlin,” “painful, and ”jokes proudly delivered and poorly received.”   

Joe Fitzgerald in the Herald started off his column: “You can certainly add the St. Patrick’s Day Breakfast to your growing list of 
attractions that are fading fast in this town.”  He went on: “the whole affair was “painful,” especially if you recall the days when Billy Bulger gave it such panache.”  

One line in a newspaper had it: order was restored at a storied, but often cringe-inducing event that briefly detoured into the lively and historic last year when Dorcena Forry, a Haitian-American woman, assumed hosting duties at a roast long dominated by Irish-American men.” To my surprise the writers seemed surprised that a Saint Patrick event had long been dominated by Irish-American men.

Another line noted Senator Markey said: “On a day in South Boston, when Linda is to host and the LGBT community can march in the St. Patrick’s Day parade . . .  hope and history are rhyming.” The writer said Markey “sought to link the two events in a paean to inclusivity.” (my emphasis)

But that’s not what it is supposed to be about. It should be a paean to St. Patrick. It should be a paean to the Irish Catholic Bishop who brought the Irish their religion. Right now it is anything but. Inclusivity is fine and if that is the purpose of the day call it Inclusivity Day but don’t pretend it has anything to do with St. Patrick when the Irish magic has flown.

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Israel Cleverly Outdoes the Brits:

Woman cryingDo you remember Romney talking about the other 47. Looking back we’d have to say he was quite prescient. Who’d ever believe he was talking about 47 U.S. Senators who seemed to have abandoned the leadership of an American president in preference to that of a foreign ruler.

You all know the background. The Israeli leader Netanyahu comes here to embarrass our president. The result is 47 people in the Senate going to bat for him by writing a letter seeking to undermine our president.  He, by the way, is trying to keep us out of war. The 47 for some reason want one.

Fortunately for all those who are confused by what’s going on, a person described asa resident scholar at the American Enterprise Institute (AEI), a trustee at Freedom House, a board member of the Jewish Institute for National Security Affairs (JINSA), a signatory on Project for the New American Century (PNAC) letter-writing campaigns, . . . [who is] unabashed in his one-sided support of Israel.” has made it quite clear.

You have to remember the PNAC. Its members wrote a letter to President Clinton seventeen years ago in January 1998 (when Netanyahu was the prime minister of Israel as he is now) decrying American policy toward Iraq and noting: “if Saddam does acquire the capability to deliver weapons of mass destruction, as he is almost certain to do if we continue along the present course, the safety of American troops in the region, of our friends and allies like Israel . . . will all be put at hazard. . . . The only acceptable strategy is one that eliminates the possibility that Iraq will be able to use or threaten to use weapons of mass destruction. . . . this means a willingness to undertake military action. . . .   Netanyahu’s fingerprints were all over the letter.

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A Story of Ageism

(1) JanusI got a call the other day from a friend who I’ll call Hecktor. He reminded me that he was about to climb out of his seventies and over the hill into his eighties. He said he planned to invite me to his eightieth birthday party but he had changed his mind. My name had been stricken from the list of invitees.

He went on to say he took umbrage with my writing that old people cannot govern America. I have to admit I was somewhat embarrassed. This guy is as sharp as a whip so my denigration in my post about the Hill/Billy combo which is reaching the ripe seventies didn’t sit too well with him.

It was sort of embarrassing talking to him. I have no difficulty seeing him as capable a president as any of the recent holders of that office. I tried to explain that even though some people remain sharp throughout their long lives it still wasn’t a good idea for a country to have an old person as president.

He then said: “Well, you might as well admit it, you are engaging in ageism.” I agreed that my column suggesting the Hill/Billy duo was too old to hold the office was a form of ageism. After reminding me I still was not invited he rang off.

I later learned that prior to that call Hecktor had been engaged in certain questionable activities that raised some eyebrows. The F.B.I. learned about them. It had put what’s known as an open surveillance on him. That is the kind where the F.B.I. agents don’t hide their presence. Where ever Hector went there were at least two agents openly following in his footsteps.

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It’s Your Fault:

(1) American-FlagRaise your hand because you must take the blame. Since you have been able to vote for the American president we have not had one who was ranked in the top. The last time a top seven president was elected was not during the time you were eligible to vote unless you were born before 1927 which leaves a minuscule minority who can escape blame. So what was it that so dumbed down the electorate that the presidents we began to elect were mired in mediocrity.

Did the 26th Amendment have anything to do with it? That passed in 1971. It gave those under 21 years of age down to 18 the right to vote for president. The first election after that gave us Carter (27), Reagan (17), Daddy Bush (23), Hill’s Billy (21), Baby Bush (34) and Obama  who is middling to muddling.(Numbers in parenthesis from aggregated poll). I’d guess that had some impact; the education and life experiences of those between 18 and 21 certainly are less than those above.

Plus, in 1971 it seemed the nation was running scared and was being pushed around by the “don’t trust anyone over 30″ crowd which perhaps made us a little uncertain of our values. That group is now in their 60s and 70s has to take a major responsibility for the presidents that have been elected. So it’s fair to ask whether the results of the influence of the flower children also contributed to the poor showing of judgment when it came to picking our leaders. Did we turn from seeking a leader to wanting someone to cuddle with?

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Is it A Hernandez Farewell or a Hand from the Judge?

DSC_0245Watching from the outside it seems the Bristol DA’s office is engaged in a little bit of over kill in the Hernandez case. Perhaps it is necessary given the judge’s bent to favor defense lawyers and her prior squabbles with that DA’s office. I can’t see how their case will get any better than it is now.

What surprised me about the trial was the conduct of the defense counsel. Early on they were challenging some of the police work that occurred at the scene. I couldn’t figure out why they were doing it. No matter how sloppy the police may have been, if they were sloppy at all, it has no bearing on the facts of the case as we’ve seen as the days have passed.

I spoke with a guy who did a lot of defense work and asked him what he thought. He said first of all one of Hernandez’s lawyer is a civil lawyer and really doesn’t have a clue; and he said the other has a routine that he always uses to attack the police work. He agreed with me that their tactics made little sense other than as being just a show.

The Massachusetts State Police have proven they’re real professionals and have put their best foot forward in this case. They had a guy put the car Hernandez was in at the scene; they had another one of their employees tie Hernandez’s DNA into articles found at the scene. Under the rules of criminal discovery the defense counsel knew all this evidence was coming down the road to run over their client so they should have known attacking the cops wasn’t such a wise idea. Were they only doing it to pretend?

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