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.

South Boston’s Whitey Bulger Needs Experienced Massachusetts Criminal Defense Attorney

In case you missed it, James “Whitey” Bulger (hereinafter, “Whitey”), the long-sought reputed mob boss of Boston, was arrested and brought back home last week. Home for Whitey was South Boston. Standing there now, of course, is Boston’s Federal Court…which promises to house a great deal of the rest of his life. He is now in his 80’s and charged with many federal crimes.

Whitey’s arrest was difficult to miss last week. What was easy to miss, I suppose, were nasty words like “alleged” when discussing his past. Leave it to a die-hard experienced criminal defense attorney like me to notice. I can be a bother that way.

Anyway, Whitey’s history, whatever the actual truth turns out to be, is , and will continue to be, fodder for a host of blogs like this one. In fact, I can see focusing on his story(ies) all week this week. We’ll see.

Leave it to Whitey, though, he returned throwing the government for a loop right off.

You see, Whitey is believedto have access to all kinds of money. He was also arrested in possession of a great deal of money. The government, of course, believes that this money must be ill-gotten gains and so contends that he should not have access to it. Indeed, in these types of cases, monies are routinely seized by the prosecution as they bring an action for forfeiture of the funds.

A criminal defendant in this country, particularly when facing the possibility of incarceration, has the right to an attorney. We treasure this right so highly that, if a defendant is found to be indigent, unable to afford his/her own lawyer, one is provided. When this topic came up last week during one of two hearings for Whitey, he indicated that the only way he could afford his own attorney was if the government gave him access to the money they seized.

The government objected, claiming that Whitey had access to other funds and that the monies seized were to be forfeited.

The court appointed a temporary lawyer and US District Court Chief Judge Mark L. Wolf has now Ordered said temporary lawyer and federal prosecutors to try to reach an agreement about whether Whitey is entitled to a public defender by the end of the day today.

Both sides are expected to file memoranda and affidavits concerning Whitey’s finances. A hearing is scheduled on the subject on Wednesday.

Whitey’s longtime companion, Catherine Greig, who has been charged with harboring a fugitive, has also requested a public defender.

That matter is also expected to be addressed in court this week as well.

Attorney Sam’s Take On The Right To Counsel And Presumption Of Innocence

The issue of whether or not a criminal defendant gets a court-appointed lawyer is an issue between the court and the defendant. Generally, the prosecution has no standing to address the issue.

Of course, there are exceptions. This case falls right into one of them.

As stated above, the government believes that Whitey has access to other funds that could be used to hire private counsel. The prosecution has also argued that Whitey has plenty of friends and family who could help him afford a private lawyer..

Both these arguments have as much merit as the general media’s decision that Whitey is not entitled to even lip-service when it comes to any presumption of innocence. This is why the word “alleged” is seldom found in the reporting of this story.

The fact that the government believes that Whitey has access to other money is fine…for them. It does not make it fact. It is not accepted as fact until a fact-finder finds it to be so. This would be a jury or a judge…not one of the advocates. Further, as Judge Wolf has already stated, Whitey cannot be forced to incriminate himself by discussing his finances to such an extent.

By the way, what do you think would be the government’s next move as soon as Whitey mentions other assets?

You got it…asset no more! The government would go to grab it as it did with the money seized in the first place.

As for whether or not Whitey has supporters who could help him afford a lawyer…it is irrelevant. It is not nobody else’s responsibility to give Whitey money for counsel. Moreover, Whitey’s right to counsel cannot be conditioned upon such generous supporters.
The problem here is that the government wants to have it both ways. They want to grab the money that was seized…yet do not want to see Whitey get free counsel.

“But, Sam, that money was illegally earned! Can’t the government seize such money?”

Sure, and, if they prevail in a forfeiture hearing, then they can keep it. However, Whitey has not even been proven guilty of anything yet. Further, even if he is convicted of all of the crimes of which he is charged, it does not mean that this money, possessed many years after the alleged crimes took place, has any connection to said crimes.

Whitey, however, does not appear as a very sympathetic character. He is cloaked in years worth of legend…probably combined with both fact and fiction.

However, as far as our law is concerned, he is supposed to be presumed innocent unless and until he is proven guilty. He is entitled to counsel and should not be made to surrender his 5th Amendment protections in order to get one.

For those of you who think I am being overly kind to Whitey, or stay awake at night in fear that he will have an easy time of it…look again. Do you really think Whitey is getting out of custody any time soon? He faces allegations of Massachusetts murder, racketeering, RICO and a host of other major crimes. He also has been “on the lam”, avoiding outstanding warrants for years. Do you really think he will win a bail hearing?

In short, if the cases against Whitey are so strong…what is the government afraid of to the extent that they would risk a conviction that would have to be overturned on appeal?

Bail hearings being what they are…he is unlikely to be going anywhere for a very long time!

To view the article upon which this blog is based, please go to http://www.boston.com/news/local/massachusetts/articles/2011/06/27/judge_wants_bulger_defense_issue_settled/

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