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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: February 18, 2013

BOSTON’S FEDERAL PROSECUTORS CONTINUE TO FIGHT EXISTENCE OF IMMUNITY DEALS

As last week came to an end, Attorney Sam’s Take was discussing Boston’s favorite Multiple Murder Matter which is taking place in federal court.

It seems as if I am not the only one who finds the festivities in United States v. James “Whitey” Bulger (hereinafter, the “Defendant”) to be a performance fit for the Twilight Zone. I direct you to Matt Connelly and an article penned by him which link appears at the end of today’s blog.

Boston’s number one multiple murder matter continues to defy the spirit, if not the letter, of regular criminal procedure. Issues which seem to most of us to be “no-brainers” seem to be gut-wrenching and mind-numbing for the legal experts assigned to make the decisions.

When I was a prosecutor back in New York, I learned that it is of little value to gain a conviction if that conviction is likely to be thrown out by a court of appeals. Such ideas seem to have been part of criminal justice history in the Defendant’s case. The latest such issue plaguing the court is whether the Defendant should be able to present part, or all, of his defense at trial. This defense seems to be that the United States Attorney’s Office gave him carte blanche authorization to commit any crime whatsoever in perpetuity, including murder.

The federal prosecutors have presented a number of arguments why the Defendant should not be allowed to present this defense. They include, but are not limited to, the following reasoning:

“We would never grant such immunity. His argument is absurd.”

Interesting approach, but it seems like an argument against the facts asserted by the Defendant to me. In jury trials, questions of fact are left to the jury, not the judge. Therefore, at least as far as this argument goes…one would expect the defense should be presented and the jury should determine how “absurd” it is.

“Even if he was given immunity, he would not be given immunity to commit MURDER! That would be against public policy!”

This argument seems to suggest that anything short of murder, like armed robbery, sexual assault and drug dealing would have not been against public policy and so was potentially possible. That seems kinda troubling, no?

“Some of these murders took place before we allegedly made such a deal. So, immunity would not even effect them.”

Well, that argument makes no sense on its face. Immunity can be granted for past crimes. In fact, it usually is. I have seldom seen instances where the government actually tells someone to go out there and commit any crimes for which they have an inkling. Regardless of it being murder.

Of course, the way the prosecution must word their motion is that the alleged immunity question is a matter of law, not fact. It seems to me though that even if whether prosecution is barred because of an alleged grant of immunity…the question of immunity remains alive as a question of fact.

It is all very well and good for the court to decide whether, as a matter of law, a prosecution is barred. However, even if it were not barred, the belief in the immunity may well be part of the defense. I do not really know how it would be helpful in that regard, if the question of whether the prosecution was barred is not left to the jury, but it could be. The people best suited to make such a determination, of course, is the defense team. Not the judge. Not the prosecutor.

You may be wondering why the government is fighting so hard to preclude any mention of the alleged immunity from ever being mentioned to the jury. To me, it is rather obvious.

Any talk of immunity to the Defendant, particularly in hindsight, is very embarrassing. Of course, I would think that the very idea that the Defendant was a government informant might be a bit embarrassing as well given what he was doing at the time.

“But, Sam, maybe the government did not know he was doing all those things?”

Well, it seems as though that idea is going to turn out to be fetched pretty far. However, let’s say they didn’t. Would that be better?

The great folksinger Arlo Guthrie once wrote a song about the old Watergate scandal under the presidency of the late Richard Nixon. In response to Nixon’s repeated claims to have not known about any illegal activity of his staff, Guthrie asked, “If you didn’t know about that one…well, then what else don’t you know?”

Again, this is the federal government. The Justice Department. They are supposed to be keeping us safe. It would appear that the Defendant’s alleged crimes were not much of a secret. How did they miss all that?

Let's peel this criminal justice onion a bit more tomorrow. We can discuss other interesting questions, like how is the judge deciding this issue someone who was a significant player in the U.S. Attorney's office during the time of the alleged immunity?
To read the above-referenced article in today’s blog, please go to http://www.patriotledger.com/news/cops_and_courts/x1522323338/MATT-CONNOLLY-Whitey-Bulger-s-defense-looks-more-and-more-like-a-Lewis-Carroll-novel