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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: March 2, 2013

SUBMITTED QUESTIONS ON BOSTON’S MULTIPLE MURDER MATTER

On February 23rd’s Attorney Sam’s Take, I indicated at the end that I would entertain questions regarding the recent blogs in the multiple murder matter of James “Whitey” Bulger. As you may know, the trial is currently scheduled to begin this coming June.

Here are a few questions and some responses:

“Sam, you have been writing about the Bulger case perhaps more than any other case. Why?”

I think the Bulger matter is an important and fascinating case on many levels. As a result, I am watching the pretrial proceedings and reading what I can about it. Of course, one of the main reasons for this blog is to educate and expose the criminal justice system for what it is in hopes that folks may become motivated to make changes before it is too late. While the history of the case is interesting in its own right, I find the court activities particularly helpful in this regard.

In my opinion, this case seems to take what is ordinary and turns it on its head to make it extra-ordinary and vice-versa. This is not necessarily unusual in the trenches, but this is being played out on a large stage. Like the O.J. Simpson case before it, it could be an opportunity to show the system at its best. If it did that, it would uphold the beliefs and practices upon which the system is based. However, again like in the Simpson matter, that is not what we are doing. We are doing the opposite, thereby further convincing the onlooker that the system is mockery of those beliefs.

“How would federal prosecutors be able to give someone immunity for any future crime?”

You would be shocked at what a prosecutor has the power to do. Think of it this way. If nothing else. If a prosecutor’s office refuses to bring a prosecution, who is going to bring it?

More to the point, though, it has long been commonplace to make deals with the alleged “criminal element” in order to successfully prosecute cases. There are two levels why this is so important to a prosecutor’s office. One is what you might expect. There is an interest in the office to fight and prevent crime. There is a limitation of resources. Often, a great deal of evidence can be gained from co-conspirators and informants. We have discussed the dangers of this many times. Prosecutors often do not seem to recognize these dangers but make the equation that they are sacrificing the prosecution of “small fish” to go after the bigger ones.

How Whitey was ever considered a “smaller fish”, of course, is a question for another day.

The other reason is political. Prosecutors’ offices are controlled by the chief prosecutor, an elected official. Successful prosecution, particularly of big cases, means positive headlines. Failure brings the opposite. Therefore, convictions become paramount. How they get them…alttle less so.

Again, this kind of turns the system on its head because the prosecutor’s job is not to seek convictions no matter how, but to “seek Justice”. That is often lost in translation to reality.

“How can it be possible that Whitey was an informant and yet gave no information to the government?”

First of all, it is important to remember that they facts are still being litigated. Somebody, or bodies, may not be as romantically involved with the Truth as one would hope. However, there is an explanation that has struck me here where it could turn out that both positions are the truth.

Remember, first of all, that “The Truth” is not always absolute. Often it is a matter of perception. It is possible that the government made the deal with Whitey and he never followed through with information. On the other hand, it is also quite possible (particularly if he was as bad a guy as they say he was) that Whitey gave bad information to the government. In this case, Whitey could hold on to the position that he gave “no” help to the government while the government would still have him listed as an informant.

Of course, that kind of presents even more troublesome possibilities, doesn’t it? For example, does that mean that many of the prosecution of which Whitey was a source based on something other than the truth? Are those bad convictions? How foolish would the government look if that turns out to be the case? More importantly…what would that reveal about the way prosecutors go about investigating and prosecuting cases?

Unfortunately, the answer to that last question is “very little”. In order to reveal something, that “something” would have to be previously unknown. This extremely harmful truth about our criminal justice system IS known.

It is simply ignored.

Get the picture why I find this case so fascinating?

Have a great, safe and law-abiding weekend!