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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: January 16, 2013

BOSTON FEDERAL MULTIPLE MURDER CASE OF WHITEY BULGER PRESENTS ISSUES AS TO THE DEFENDANT'S RIGHT TO HIS OWN DEFENSE

I could tell, this morning, as I noted the drop in temperature, not to mention the snow, that something was a bit different. Instantly, I figured out what it was…you woke up wondering what was happening these days in the proceedings leading up to the federal murder trial of James “Whitey” Bulger (hereinafter, the “Defendant”). Well, let me bring you up to date on the latest debate.

The Defendant’s lawyers are reacting to the prosecution’s latest argument regarding the alleged immunity which the defense claims was given to the Defendant during his days as a government informant. The prosecution has argued that a judge should force the Defendant to show proof of the deal he says he had with the late United States Attorney Jeremiah O’Sullivan, who the Defendant says gave him immunity in the 1970’s and 1980’s. It would seem that the prosecution would like to prevent any mention of the immunity issue during the actual trial.

Attorney J.W. Carney, Jr., lead attorney for the defense is arguing that a jury – not a judge – should decide whether the immunity defense in this matter is legitimate. Carney argues further that the immunity pass “did not have an expiration date”.

Attorney Carney argues that it is the Defendant’s choice alone whether to bring up the defense of the immunity prior to trial. Having the court decide that issue, he says would violate the separation of powers between the executive and judicial branches of the federal government. Further, Carney wrote in the opposition to the government’s motion, “…the prosecuting attorneys were not witnesses to the grant of immunity; they simply advocate in an attempt to disavow the (Department of Justice’s) agreement...Despite their inner conflict, the United States Attorney’s Office cannot employ the court to renounce their obligations.”

The Department of Justice acted as part of the executive branch of government when the deal was made with the Defendant.

Prosecutors have called Bulger’s defense claims “frivolous” and “absurd.” They also argue that the Defendant’s FBI file makes no mention of the deal nor whether the Defendant and O’Sullivan ever met.

The battle still rages as to whether the judge assigned to the case will remain handling it. The Defendant has moved that Judge Stearns should be removed because of his previous employment as chief of the U.S. Attorney’s Criminal Division. The court has ordered prosecutors to dig up and hand over any documentation they can find that references the immunity claim.

Attorney Sam’s Take On A Defendant’s Right To His Defense

Several legal issues are clearly presented which the court must decide prior to, and during, trial in this case. They all come down to one basic category, however. That is the right of a criminal defendant to prepare and present his own defense at his own trial.

Many people think that such a right is unfettered. They are wrong.

You see, under the law, a defendant is not the only side of the case who is promised a fair trial. The prosecution is as well. This is why prosecutors can bring motions to curtail certain issues from being a part of a given trial.

We will go through these issues in my next blog and try to determine how if decided in the Defendant’s favor, they could prevent the government of a fair trial.


To read the original story upon this blog is based, please go http://bostonherald.com/news_opinion/local_coverage/2013/01/whitey_bulger_wants_jury_mull_immunity_claim