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) 492 3000.

A Boston Criminal lawyer Watches Whitey Bulger Case’s Initial Theatrics

IF you thought you heard me weighing in on wbz radio yesterday about my last blog’s subjected matter…you were right.

All afternoon long!

Somehow, issues like the right to counsel is important to me. No matter what we think of a particular criminal defendant.

And this defendant, although fascinating, is not very well-loved.

The orange jump-suited Whitey Bulger (hereinafter, the “Defendant”) was brought once again to Boston’s federal court yesterday afternoon via an escort that one would expect would be reserved for a comic book super villain, or at least the late Osama Bin Laden. With security in and around the building, the Defendant found himself surrounded by familiar faces.

There was, for example, the Donahue family…wife and son of one of the Defendant’s alleged victims. They are vowing to attend as many of the proceedings as possible.

Also, there was the so-called “provisional attorney” who has been appointed to represent the Defendant until someone else, private or court-appointed, takes over.

Also, a small bevy of lawyers were there…waiting in the wings to potentially become associated with this high-publicity criminal matter.

One person we know was not there.

That would be Brother Billy. Perhaps that had something to do with the fact that the government is trying to dip into his pockets to find monies that may arguably belong to the Defendant.

Earlier, federal prosecutors had moved to drop the 1994 racketeering indictment against Bulger in order, so they said, to focus on the later indictment that charged the Defendant for other crimes…such as 19 Massachusetts homicides.

In its papers, U.S. Attorney Carmen Ortiz said that prosecutors consider the later 1999 indictment charging the Defendant with 19 murders to be the stronger case.

This is true. The Defendant faces life in prison, or death, on those charges. Further, even if the court were to forget that the Defendant had been “on the lam” for so long, it would not likely grant any chance of bail in the homicide cases.

This move brings a new wrinkle to the genesis of what already promises to be a long drawn out legal drama. You see, the Defendant has to decide whether to accept the dismissal or still try to force the government’s hand to prove him guilty.

What the government’s motion did do was to postpone the decision on whether the Defendant will receive court appointed counsel. As you may recall from Monday’s blog, the Defendant is saying that, without access to the monies that the government has already taken from him, he cannot afford to hire counsel.

The government is basically setting precedent by weighing in on the subject, arguing that there are other means by which the Defendant can procure counsel.

And so, aside from all expectations of an afternoon of legal action…nothing really got done. Instead, a new time-table was set by the court which is now to play out (at the moment, at least) this week.

Attorney Sam’s Take On Prosecutorial Investigations And Even Playing Fields

In the criminal justice system, whether it be state or federal, we like to fantasize that both sides have equal footing.

Many people believe that the footing is uneven because the defendant has the “upper hand” because all those tricky rodent-like creatures like experienced criminal defense attorneys

Sorry to disappoint…I, being one such alleged rodent, do not see it that way.

I refer you to how cases like this begin.

They begin with a criminal investigation. In a federal matter such as this, a loooong investigation takes place. During said investigation, witnesses are regularly questioned, pressured and “convinced” to testify as to the truth as said investigators believe it to be.

During said investigations, the sky’s the virtual limit when it comes to accessing documents…be they paper records, recordings or the result of government wire-taps.

Throughout said investigation, the defendant generally does not even know the investigation is going on.

After said investigation is completed, the government, along with its investigators, U.S. Marshals, DEA agents, FBI agents, IRS Agents and every other type of agents you can imagine, bring forward criminal charges.

The defendant finds out he has been charged and is brought to court, either by independent foot…or compelled by chain.

And then…he receives some of the evidence against him. That’s right, some of the evidence against him. Some critical evidence, at least in the federal system, such as Grand Jury minutes, are kept from him until just prior to trial.

That is when the defense attorney (privately retained or court-appointed) gets to see them to prepare for trial.

Sound even-handed to you?

Granted, the Defendant’s history does not completely fit the above-described investigation, but it is not all that far. After all, he still does not know what “they’ve got” on him, despite the passage of time.

It tends to be kind of hard at such a late date to truly investigate the case for your client…especially when you are going to have to deal with witnesses who were co-conspirators with the government as revealed in the early days of the Defendant’s prosecutions.

“Ok, Sam, so what does that have to do with the prosecutors and what they are doing now?”

The government chooses the time and place for the unveiling of an indictment or complaint. This comes after a long secret investigation. They have clearly been in complete control until this stage.

And then…they get to court.

Is this where the even-handedness begins?

Check out tomorrow’s blog to find out.

To view the original story upon today’s blog please go to http://boston.cbslocal.com/2011/06/28/feds-dropping-racketeering-charges-against-whitey-bulger/

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