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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 14, 2013

BOSTON’S MULTIPLE MURDER MATTER OF JAMES “WHITEY” BULGER CENTERS ON QUESTION OF IMMUNITY FROM PROSECUTION

I warn you in advance…following this Boston murder story may well turn your mind into a pretzel and make you dizzy.

Not for the reasons you, and a lot of the media may think, though.

The subject matter is a case which Attorney Sam’s Take has discussed before. It is the continuing saga of James “Whitey” Bulger (hereinafter, the “Defendant”) and his federal prosecution for multiple murders laid at his feet occurring during the 1970’s and 1980’s.

I particularly think it is important for me to refer to him as the Defendant as I coontinue to notice that people need to be reminded where he stands in this matter. He is a criminal defendant. He has been convicted of nothing. Yet, everyone, from the press to many of my fellow defense lawyers feel comfortable forgetting that nasty word “alleged” when it comes to him. I suppose this is the case to do that, though. After all, the rules by which we handle criminal defendants seem to be turned on their collective heads ever since his return to Massachusetts.

But I have ranted about that enough in my previous blogs. Let’s deal with a more current aspect to the story. It involves the issues of whether the Defendant used to be an informant for the federal prosecutors and whether or not he was granted immunity by them for criminal acts during this time.

The Defendant’s defense team has argued that he was granted immunity which would seem to having resulted from the Defendant’s serving as an informant. Or did defense counsel ever really say that the Defendant was actually an informant who gave information to federal law enforcement?

Well, yesterday, counsel, the esteemed J.W.Carney, Jr., argued that he had never indicated that his client had actually given information to the feds. He further argued that the issue of whether the question of a federal prosecutor’s having given the Defendant immunity to commit crimes should be decided by a jury, not a judge. In other words, it should be litigated at trial…not by a special hearing held long before a jury is even empanelled by a judge (much less by a judge who was working for the same federal agency at the time).

The opposing federal prosecutor argued that any immunity agreement the Defendant claims he had with the government would be "void as a matter of law" if it included murder.

Both sides presented arguments to U.S. District Judge Richard Stearns, who a prosecutor in the same office in which the immunity was allegedly given, yet is nevertheless still scheduled to preside at the Defendant’s June murder trial.

Just to make things a bit more murky, testimony from the Defendant’s alleged associates and documents kept in the United States Attorney’s office indicate that the Defendant was, indeed, an informant.

The Defendant had originally claimed that , back in “the day”, federal prosecutor Jeremiah O'Sullivan gave him immunity for crimes while the Defendant was acting as an informant for the FBI about local leaders of his gang's main rivals, the Mafia. O'Sullivan, who died in 2009, denied making an immunity deal with the Defendant when he testified before Congress in 2002.

Attorney Carney actually refuted whether his client had provided information to the government yesterday. "James Bulger was never an informant for the FBI or for anybody else," Carney told reporters after the hearing. He left unanswered questions about why the Defendant would have had immunity if he hadn't helped federal law enforcement officials as an informant. Attorney Carney said he planned to answer that during trial.

I have indicated in the past what I think of Attorney Carney. He is a very experienced and talented criminal defense attorney. I will also remind you that, as I have also opined in the past, an attorney needs to know when and when not to say things to the media. I point to the case of Jerry Sandusky on that point, for example.

Attorney Carney is one such attorney. You may be sure, however, that he knows just what he is saying and what he is not saying. He also knows that the time that counts when revealing evidence is before the jury. Not the media.

As an experienced criminal defense attorney myself, I can tell you that, strategically, one wants to give away aspects to the defense to the prosecution as seldom as possible. Do you think that is unfair? Then you might want to review the many times the federal judiciary has had to reprimand prosecutors (especially of Boston’s United States Attorney’s Office) for not giving defense attorneys material that they are legally bound to give.

And, yes, the rules are different for prosecutors and defense attorneys. Prosecutors have the higher burden.

It may therefore come as little surprise to you that spokespeople for our United States Attorney, Carmen Ortiz, have declined to comment on Attorney Carney’s claim.

A spokesman for U.S. Attorney Carmen Ortiz declined to comment on Carney's remark.
Assistant U.S. Attorney Zachary Hafer has had to comment, though. He argued to the judge Wednesday that even if Defendant is to be believed, as a matter of law, an assistant U.S. attorney doesn't have the authority to grant anyone immunity to kill Americans.

"Any contract between Mr. O'Sullivan and Mr. Bulger — to the extent it contemplated murder — would be void as a matter of law against public policy," Hafer said.

I suppose that is supposed to mean that all other crimes are still on the proverbial table?

In terms of why any mention of the immunity claim should be kept away from the jury, AUSA Hafer argued that its mention would distract and confuse the jury.

Carney, however, argued that his client must be given the right to present his immunity claim as his defense in order to ensure a fair trial.

"James Bulger will testify that he was given immunity from prosecution by Jeremiah O'Sullivan," Carney said. "I suspect the government will have quite a few questions for Mr. Bulger. It certainly will be a central ... if not the central finding of fact made by the jury."

Carney continued: "To remove his defense of immunity from being presented to the jury based on any type of factual finding by Your Honor would, in effect, deny him his right to a fair trial."
The judge took the request under advisement and didn't indicate when he would rule. He gave prosecutors and Bulger's lawyers two weeks to file additional written arguments.

Are you sufficiently dizzy yet? Let’s discuss this further in my next blog.

To read the original story upon this blog is based, please go http://bostonherald.com/news_opinion/local_coverage/2013/02/bulger_lawyer_jury_should_decide_immunity_claim