Hello. I hope you had an enjoyable, albeit alittle warm, Patriot’s Day. Well, at least in Massachusetts it was Patriot’s day. We tend to honor the Patriot’s of wars present and past by running the Boston Marathon. I guess that is a battle in and of itself.

But that is another story.

The Boston Criminal Lawyer Blog last left off talking about discovery practices in the Federal Court. The matter which brought it up was the case of James “Whitey” Bulger (hereinafter, the “Defendant”) who is facing murder charges dating back quite a long time.

The question we left off at was, “But, the government’s primary responsibility is to seek Justice and a fair trial, right?”

And, of course, the answer is “Yes!” In both state and federal court, the prosecutors’ primary mission is to seek the truth and do “Justice”.

“So, what’s the problem? Of course the prosecution will give the defense what it needs in order to have a fair trial, right?”

That is not what I said. I said that it was the government’s primary responsibility, as recognized by their own oath that they take. However, whether that translates to reality very well is another story. A story that we have discussed quite a bit over the years of this blog.

First, you must understand that, like any business, there is a structure to a prosecutor’s office. At the top of that structure is the main prosecutor. In the state court, that would be the District Attorney. Every county has one. In the federal court, it is the United States Attorney.

Both the District Attorney and the United States Attorney are political positions.

This means that how things that their office does look politically (in the media and so on) matters a great deal to the boss of the organization. And, naturally, it is that boss who sets the directives, tone and policies of the office. All the assistants below him or her are underlings who answer to supervisors who answer to their supervisors all the way up to the big boss.

As we have discussed in the past many times, nobody gets good public reaction these days when perceived “soft on crime”. You merely have to consider the previous case of Judge Lopez and the current matter of Judge Dougan as evidence of this. If that is not enough, just look at the press accounts of criminal cases. Folks tend to be out for blood when it comes to criminal allegations. Therefore, the safest thing a prosecutor can do is to be unrelentingly “tough” on crime.

“After all”, most prosecutors will tell you, “What if I give the defendant a break and he goes out and kills someone?!?!”

I remind you of the parole debacle which began about a year ago and still plagues us today as discussed a few weeks ago.

Now, add something else to the equation. The prosecutors are trial lawyers. In other words, they are advocates. And they want to win.

Add to that fact the certain indoctrination which one goes through at such a place of work and the translation becomes simple….all criminal defendants are guilty. Otherwise, they would not have been arrested by the nice trustworthy police officer. That’s it. That simple.

From the prosecutorial point of view, the reason for discovery is chiefly so that the nasty defense lawyers can get a chance to poke unfair wholes into the case against their clients.

I cannot count the number of times I have heard a prosecutor say, “Hey, you want to know how the crime went down? Ask your client!”

And this would make sense…if all criminal defendants were, in fact, guilty of exactly what they are accused of.

Sorry, that is not reality.

…So this is why prosecutors often do not like to give any more discovery than they have to. They are advocates, like the rest of us trial attorneys, and they would like to get as close to “trial by ambush” as is permissible. After all, they are the good guys, right? And, sometimes you have to fight fire with fire in combatting crime in the courtroom.

At least, so the view goes.

So, let’s get back to the federal case of the Defendant.

In recent years, this very United States Attorney’s Office has gotten into a great deal of trouble for withholding discovery which should have been turned over to the defense. In the Defendant’s case, of course, years of investigations and previous trials and proceedings have taken place. Therefore, it is no secret that there was going to be a great deal of discovery. Further, criminal cases do not get much more high profile than this. It is not a case which the prosecution would want to see thrown out or reversed because of a screw-up on their part.

Now, as I have told you, I am not involved in this case on either side. Therefore I do not personally know the tactics involved on either side. However, I have been a trial lawyer for over 25 years.

When one has to give over a great deal of discovery, it is not unusual, particularly in civil cases, to turn over the mountain of discovery in such a way that it is extra confusing and time-consuming to go through it. Don’t organize it. Make the mountain a bit higher by mixing in things that are not really relevant. That sort of thing.

This is what the defense is claiming the prosecution has done in this case. The court is trying to hold the defense attorneys on a rather short leash so that the matter will move on to trial as soon as possible. The defense is left having to make sense of it all which can take a much longer time than everyone else would like to admit.

The prosecutors? Well, they are left with wings and a halo saying, “Golly gee, we are damned if we do and damned if we don’t! Don’t give enough discovery and they complain; give too much and they complain!”

And the rest of the onlookers, including the media? Well, that brings us to the point I made in the beginning of Part One. The general consensus is, “Hey, we all know he is guilty…let’s get on with it!”

After all, why let things like a silly presumption or esoteric theory like “fair trial” get in the way of….well…”Justice“?

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