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.

IT WILL BE A CRIMINAL APPEALS ATTORNEY WHO FIGHTS THE REAL FIGHT IN WHITEY BULGER’S MURDER/RACKETEERING MATTER

The James “Whitey” Bulger trial is a lesson on the importance of criminal appeal lawyers. They had better be experienced and talented to wade through the legal issues in this case. I believe it is in the Massachusetts appeals courts that the real legal battle will take place.

Not since former prosecutor Christopher Darden cried on camera complaining that the trial of O.J. Simpson was not going well has this Boston criminal lawyer seen such absolute absurdity by folks who are supposed to be grown up professionals used to handling matters of great import. You think I am raving? Let’s look at this story‚Ķbecause you should be angry too. After all, it puts you at risk in two different ways.

You are no doubt aware of the Bulger trial which has been going on for weeks at Boston’s federal court. Bulger is on trial for several murder as well as racketeering during the days during which he was the reputed “mob boss” in South Boston. From the time the government finally brought Bulger to “Justice”, it has seemed to me that the laws of criminal and court procedure have been up for debate at almost every turn. They have been attacked to a ridiculous extent by none other than the prosecution. Perhaps more shockingly, many of these prosecutorial requests have been granted by the judges who have touched this high profile potato.

Various Attorney Sam’s Takes have been devoted to the theatrics.

Today’s arguments by the prosecution, however, almost forced me to throw out the law books, walk away from the computer and simply babble to myself. Instead, I take the reports to you.

The trial, which is hard to imagine resulting in anything other than convictions, is coming to a close. The prosecution has presented its case and, now, the defense is throwing up a few witnesses.

The big question, as we move ever closer to closing arguments, is whether or not Bulger, the defendant, will testify.

Nothing unusual there. This is a decision that is never completely decided until all the rest of the evidence is in. There are many reasons for this, by the way. It is the right of the Defendant to choose when and if he will testify and he need not broadcast to the government what his decision will be until he either does or does not get up to take the stand.

That is, as far as these prosecutors are concerned, today.

Like other rules the government has sought to disregard in this case, the prosecutors have actually requested the judge to force the defense to disclose whether or not he will testify.
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Prosecutors told the judge that the government actually deserves to know if Bulger will testify. You see, they have decided that Bulger has had enough time to think about it.

It has become inconvenient to these prosecutors to not know the answer to this particular question after they have had the option of completely preparing for and controlling what has gone on over the past couple of months in that courtroom. Assistant US Attorney Fred Wyshak explained to the court that, after all, he has to know whether to prepare for summations or cross-examination of the defendant on Friday.

“He’s had two months to make that decision,” he said.

Unless I am mistaking‚Ķdidn’t the prosecutor have that same two months to prepare both his cross-examination and summation?

By the way, this is the same prosecution who, it was reported, refused to tell the defense which witnesses the government was going to call ahead of time so that they could be prepared.

The only thing more bizarre is that the judge did not either laugh them out of the room or come down on them like a ton of bricks. Instead, she scheduled the question for a hearing after today’s testimony. incidentally, today’s testimony ended and it was never mentioned again.

Attorney Sam’s Take On The Danger To You When The Defendant’s Rights Are Violated

“Ok Sam, why is all this putting me in danger?”

There are two very dangerous things about many of these decisions made before and during the trial. Of course, the judge who is making these calls is in the courtroom throughout the proceedings. I am not. She knows the minute by minute changes in the trial setting.

However, there are some basic things that I know after being in the trenches for over 25 years.

One of them is that trials like Bulgers use up a great deal of resources. It is an expensive proposition. Aside from the money involved, the work and emotions of witnesses, attorneys and court staff are also spent in great amount. You might think, then, that it would be a good idea not to have to try the case a second time.

Sometimes, prosecutors are desperate when trying a weak case. Rules are pushed as sort of a “Hail Mary” approach. The result is often a judicial error that mandates the reversal of any resulting conviction. In this case, however, the prosecution’s case, even aside from my complaints, appears to be very strong. In fact, the defendant himself seems to be cooperating in that he is more insistent that he was not an informer than he is that he had no part of the murders for which he is being tried.

So, since the case is so strong, why risk reversal? The logic alludes me.

“Well, how does a reversal impact me?”

First of all, who do you think pays for the courts, the prosecutors, the court staff and court appointed attorney? We all do. So, financially it is a drain. Further, Bulger was held while awaiting trial. What if, while awaiting a re-trial he gets released? Now that certain witnesses have testified for the government, if Bulger is still around, are those witnesses safe?

What do I care?”

Well, should the government not be able to produce the witnesses at the next trial, the case becomes that much weaker. What if there is not enough evidence left to convince a jury beyond a reasonable doubt?

If Bulger and his control is such a threat, do we really want it back in action?

Again, I remind you that this is a case which everyone expected a bunch of guilty verdicts from the start.

The other risk is more direct. As I have long argued, ANYBODY can find themselves accused of a crime.

Do we really want a criminal justice system where the degree in which the rules are followed changes with each defendant? What happens when the defendant is your son and the case against him is quite weak (maybe because he is not guilty). Should the rules be suspended to give the prosecution more of a chance at convicting him?

Again, I remind you that a prosecutor’s job is not to get convictions. It is to uphold the law and to seek justice. Not seek justice by disregarding the law. It seems overly generous to call the prosecutors’ tactics in this case “short-sighted”. Further, they are advocates caught up in the cause they are now fighting.

Take it from me, advocates sometimes lose sight of the system and see only the battle before them.

That is why there is a judge to keep an eye and make rulings. The court is presumably unbiased and makes sure the rules of law are followed.

There have been a lot of disappointing moments in this case.

When the convictions come in, Bulger had better think long and hard about an attorney for his appeal. It would appear that the appeals court is where the real legal battle is going to be.

To read the original story upon this blog is based, please go http://cdn.localwireless.com/wap/news/text.jsp?sid=254&nid=2073278194&cid=21162&scid=-1&ith=1&title=News&headtitle=New and http://www.boston.com/metrodesk/2013/07/31/will-whitey-bulger-testify-judge-will-seek-answer-today/LwGqlPjQPGPJva4Pp8jdSO/story.html

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