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.

WHITEY BULGER’S DEFENSE TEAM MOVES BOSTON’S FEDERAL COURT ONCE AGAIN FOR CONSIDERATION IN MURDER CASE

Last night, I dreamt that I was representing a gentleman who had been accused of murder. His name was Kyle Killer. In the dream, we were heading off to trial. You know…the trial is the place where the government has to prove each element of every crime charged beyond a reasonable doubt. Unless and until they do that, or so the judge advises juries, the defendant is considered innocent.

As Kyle and I entered the courthouse, we noticed the court calendar posted to the wall. On the calendar, the day’s pending matters were written. We looked under “K” and read the caption for Kyle’s case. It read “Commonwealth vs. the murderer Kyle Killer“.

Kyle looked at me in disbelief. “They already have me convicted”, he said.

Having no clever retort available, I woke up.

Ok, so I did not have that dream. Instead, I woke up to another matter in which we have accepted that any presumption of innocence is understood to be a farce. While he has not been convicted of any of the crimes pending (or newly dismissed upon his return to Massachusetts), the media accounts relating to the case already have him convicted as a “mobster” and the “former leader of the Winter Hill Gang”.

Obviously, once again, Attorney Sam’s Take is referring to the case of James “Whitey” Bulger. His attorneys are moving the court once again for more time to prepare for trial.

You probably do not need a criminal defense attorney to explain to you that a trial in which defense counsel is not, or cannot be, prepared is tantamount to the denial of a fair trial. Generally, this is considered to be unconstitutional and grounds for an appeal.

Of course, there is another issue being argued in this case as well. The matter is scheduled to be tried before a judge who was working in the United States Attorney’s office at the time the events at issue (in terms of Bulger as an informant who may or may not have received immunity) took place.

You know, when potential jurors for trials are going through jury selection, they are asked whether they have or had any ties with law enforcement. Usually, in cases when the potential juror has worked for one of the parties, they are excused from service…usually for cause.

Jurors are judges of the facts in trials as judges are the judges of the law. Basically, they are of the same importance. Wouldn’t it seem to you that a judge who once worked for one of the parties might be better off not trying this particular case? If only to avoid (at the very least) the appearance of impropriety?

Well, so far, the prosecution and the bench are in agreement that the answer is “no”.

And so, Attorney J.W. Carney and company trudge to court today once again to attempt to hold the court to observing the fundamental rules that we in the system recognize, at least to some degree, every day.

But this is not an “everyday” type of case. The charges are too big and the assumed guilt is too huge. And so it seems that the regular beliefs and rules do not need to apply.

There are problems with this, however, that go far beyond the Bulger case.

You see, “special cases” come all the time. The more we let them change the way we do things, the less “special” the next occasion has to be to bend the fundamental principles. Sooner or later, the principles upon which the country and its judicial system are based become less important.

What happens when it is years from now and you or a loved one are accused of a crime?

This is why we fool around with these principles at our own peril.

“Aw, come on, Sam. There is clearly enough evidence to show that Bulger is guilty of at least one of the murders.”

Fine. Then it shouldn’t be a problem to wait just alittle longer to make sure that the Constitutional safeguards are met. After all, he will remain in custody until the trial. What is it hurting?

“Well, why should we have to wait and waste all this time and money?”

For one thing, if we bastardize the system for Bulger’s case, it might just be reversed by an appeals court. How would you like to spend double in terms of time and money to try the whole thing again?

“Do you really think it is that bad?”

All I know is that the trial has not even begun yet and we are sending a defendant, charged with several murders, to trial when defense counsel is not ready for a trial to be presided over by a judge who was a prosecutor employed by the plaintiff during the times-at-issue. Oh, yeah…and during a time where we all seem to be ok with forgetting silly words like “alleged” and declaring the defendant guilty before the trial even starts. You know…as in “tainted jury pool”?

It really does not matter what I think. What do you think? Is it worth the risk?

To read the original new story upon which today’s blog is based, please go to http://www.boston.com/news/local/massachusetts/2012/11/01/mass-mobster-lawyer-argue-for-delay-trial/4RN1iHLAiG3rdc8NHiK4CK/story.html

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