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 REVIEWS EVIDENTIARY ISSUES IN UNITED STATES V. BULGER

The federal trial may be beginning, but, as this Boston criminal lawyer can tell you, the attempts to control what evidence is presented to the jury continues. It will continue, by the way, throughout the trial.

At the start of any trial, motions in limine are brought to get advance rulings on evidence and procedure prior to the attorneys even address the jury. More than a dozen such motions were brought on Monday in Boston’s federal jury trial of United States vs. Bulger.

Let’s look at a few of these motions, as well as motions which have been brought since, and then step back and re-examine what all concerned are hoping to get out of this trial. Certain evidentiary issues have already been decided…for now. For example, the court has ruled (twice) that Bulger cannot present evidence relating to any immunity promised by the government as part of his defense. Issues as to families of purported victims of Bulger and limitations of their testimony have also been presented.

Also among the early rulings are that Bulger’s FBI informant file can be admitted as evidence during the trial. Prosecutors have said the file contains more than 700 pages of documents chronicling Bulger’s role as an informant who provided information on the New England Mafia, his group’s main rival. Thus far, Bulger’s lawyers have denied that he had actually been an informant. On the other hand, they had wanted to claim that he had received immunity from a federal prosecutor as a defense at his trial.
Somehow, the issue of his being an informant is relevant while the question of immunity is not
The prosecution is being ever-vigilant on this issue, eager to claim that Bulger is trying to side-step the preclusion of immunity evidence. In fact, when seeing Bulger’s witness list, Assistant U.S. Attorney Brian Kelly argued that Bulger might be trying to use the immunity defense despite the judge’s ruling.

“It seems clear to us that they are trying to put that evidence before the jury in some fashion,” Kelly said.

Carney, Bulger’s attorney, said the defense has “other reasons” for calling the men as witnesses, but he did not elaborate.

Meanwhile, speaking of witnesses, the government’s witness list has its shares of notorious celebrities. For example, Bulger’s former alleged partner, Stephen “The Rifleman” Flemmi, who’s serving a life sentence after pleading guilty in 10 murders appears on the list. So does former hit man John Martorano, who admitted killing 20 people.

People who believe their family members were killed by Bulger will be allowed to testify, but they won’t be allowed to describe the emotional impact of losing their loved ones.
The argument about testimony by family members of the deceased’s has been settled as well. The prosecution has agreed that these witnesses would focus only on factual information, including asking the relatives to identify their loved ones in photos taken after they were killed.

“We do not intend to turn it into a sentencing hearing,” he said.

And so, as the jury selection process plods on, ground rules and guidelines are being set for the upcoming match.

Attorney Sam’s Take On Differing Goals At Trial

The Bulger trial has been called by many the “Trial of the Century”. How impressive that is may vary by opinion given that we are only 13 years into the century at this point. However, it is certainly a high profile case. For Boston…one of the highest.

While we all like to sit back and claim that everyone associated with the trial simply seeks the truth (with the exception of the nasty defense attorneys who simply want to get their client off), even a modicum of common sense tells you that this is simply not so.

For example, let’s take the prosecutors. They are trial advocates. They are looking for convictions. They want to win.

“But, Sam, if they had to choose between the two goals, surely they would opt for revealing the truth, right?”

Well, you tell me. While many may feel they wear the “white hat” here, let’s not forget that there is the potential for a couple of figurative black eyes coming for the office. After all, it would appear that this very prosecution office was complicit with Bulger and at least some of his bad deeds. To some degree, his criminal actions were excused so long as the status quo, whatever it was, continued.

I would tend to doubt that the prosecutors are very willing for such information to be released in open court.

Evidence of this, of course, is the fight about Bulger’s argument of having been given immunity.

“But, Sam, wouldn’t it be reasonable for prosecutors not to want the jury to be confused by that defense?”

I really have to doubt that. First of all, what kind of idiots do we expect these jurors to be? Do we really think that a jury in this case is likely to return verdicts of “not guilty” because of a belief (true or not) that some rogue prosecutor told Bulger that he was free to kill as he wanted so long as he “played ball”? It is simply not a believable defense. Further, to the extent that it would be an issue of law (whether said immunity, if given, were valid), the judge could simply give a limiting instruction that it is an issue of law and that they are not to consider it as a defense. However, curtailing the testimony about it (particularly as the immunity issue has already been declared relevant), simply serves to prevent Bulger’s fair trial rights and keeps evidence folks want to know from getting out. It only serves to protect the prosecution.

One of the main reasons folks say they have been looking forward to this trial is that they want to understand how it all “went down”.

We now know that this trial will not fulfill this desire. The reason is clearly that the prosecution does not want all that bad stuff to get out.

Pretty understandable…until your remember that the oath they took was to uphold the Constitution and “do Justice” not avoid embarrassment and get convictions at any cost.

But then again, jury trials have a way of bringing about surprises. Rules and ruiings can change.

Both sides have experienced trial counsel. Let’s see what happens.

To view the original stories upon which this blog was based, please go to http://www.boston.com/metrodesk/2013/06/05/james-whitey-bulger-jury-selection-process-enters-second-day/CrEaAwPV7WxpPEyHEjmcTK/story.html and http://boston.cbslocal.com/2013/06/04/whitey-bulger-trial-begins-with-675-potential-jurors/

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