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.

FEDERAL CRIMINAL SENTENCING COMES TO A CLOSE FOR JAMES “WHITEY” BULGER

The final act, at least until the appeals, of the United States v. James “Whitey” Bulger has taken place. Apparently keeping the tradition of this case in erring on the side legal danger, the court sided with the Government this morning as to whether families of people. Bulger was not convicted of killing can testify as to the damage he did to them as a result said killings.

Under the popular myth of “innocent until proven guilty”, of course, those would be the killings which Bulger was not guilty of…by any theory proposed by the Government.

Surely, you know the story by now…

In August, following an eight-week trial, jurors found Bulger participated in 11 out of 19 murders while operating a sprawling criminal enterprise from the 1970s through the 1990s that trafficked in cocaine and marijuana; extorted drug dealers, businessmen, and bookmakers; and corrupted FBI agents and other law enforcement officials. He was convicted of 31 counts of racketeering, extortion, money laundering, and weapons possession.

Jurors found prosecutors failed to prove Bulger participated in seven additional murders, and so acquitted him, and were unable to reach a verdict at all regarding one of the murders.

At the end of the hearing, which lasted about an hour and a half this morning, Judge Denise J. Casper asked Bulger if he wanted to make a statment. Bulger rose and said, “No.”
Bulger was sentenced the next morning.

The latest battle in this case was who should address the court (and Bulger) as to sentencing.

At least one juror in the case argued that the families of those whom the jury had not convicted Bulger of murdering should not be allowed to be heard at the sentencing hearing.

The juror argued that it would make a farce of the jury’s verdict
Naturally, the defense agreed and the prosecution disagreed.

In “lawyer-speak”, the argument is that to allow those families to speak brings in material that is irrelevant and unduly prejudicial.

You may ask how it could Not be relevant. Well, keep in mind that the jury did not find him guilty of those charges. This means that Bulger should remain considered innocent of those charges. Why should the court hear arguments about murders that, as far as the law should be concerned, he did not cause? Why not bring in families of murder victims throughout the state to talk about how the murder effected their lives? Under the presumption of innocence, Bulger is as responsible for those as much as he is those in which the jury acquitted him.

You do not need me to tell you why it is prejudicial. It is slinging more dirt on Bulger while the judge is deciding what the sentence will be.

One might say that the judge’s decision is unfair.

One might even say that it is downright wrong and perhaps in violation of the law.

If one said that, though, one would be wrong.

Attorney Sam’s Take On Bringing A Nuclear Bomb To A Knife Fight

Well, let’s look at a couple of things.

There are a couple of reasons why the judge most likely ruled the way she did.

First of all, the grief that the families in the murders for which Bulger was not convicted have long beared as much pain as those in the cases where Bulger WAS convicted. Perhaps worse as many felt that the jury’s verdict was a “slap in the face” to them.

So, you can see how one could feel that it was the “decent” thing to do. I would argue, however, that, nevertheless, the jury did in fact not convict him and victims’ families are always victims themselves in cases in which the defendants are convicted OR acquitted. We do not bend the rules for them.

However, in this case, the judge was not really bending the rules. Like it or not, under the Federal Sentencing Guidelines, the court is allowed to consider various things and one of those things are counts for which the defendant was NOT found guilty.

Does it make any sense to you? I does not make too much sense to me in a country that celebrates the burden of proof and the presumption of innocence.

But that is the law. So, all the judge did was elect to go along with that law. After all, if the Guidelines make those counts relevant, than certainly telling the judge about them is relevant.

There is a bigger point here, though, which has befuddled me all along about the prosecution of this case. I have posted many blogs about the case and about my issues with it.

Did anyone expect that the jury was going to hand Bulger a complete acquittal? I mean, ok, he was not convicted of some of the murders, but being found guilty for 11 murders, plus the other counts tends to make for a rather hefty prison sentence, assuming there is no death penalty sought.

I do not believe that anyone thought Bulger was going to walk out of court. Some kind of heavy-duty convictions were going to come. In that case, I kept observing the court and the prosecution take actions which could only create genuine appealable issues. They even broke with common practice. why? If you know you are going to win, why make it even possible that the defendant might have a successful appeal and law that is against the prosecution is created?

Today, the court was well within its rights to do as it did. However, there was no question as to whether Bulger was ever leaving custody alive. Why allow for the possibility that this appeal issue would be created and that it may upset an appeals court so that the law is changed in favor of the defense?

But that’s just me. Perhaps I am the only crazy person who thinks that when someone is not convicted, ignoring the presumption of innocence is inconsistent with the lynchpin of our entire system.

To read the original story upon this blog is based, please go http://boston.com/metrodesk/2013/11/13/victims-families-testify-today-whitey-bulger-sentencing-hearing/0NzmtWjgcaAwf9ayNjRunL/story.html

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