The Boston Criminal Lawyer Blog has often decried what has happened to the so-called “presumption of innocence“. You know the presumption…that alleged one that we claim to be the foundation of our criminal justice system. I tend to say that, at least until trial, that seemingly invisible presumption may be still hanging around, but it is usually outshouted by the assumption of guilt!

The more high profile the matter, it seems the more this is true. But then, who can really blame the media? That nasty A-word (alleged) is so long and hard to spell…!

The epitome of this seems to be the case of reputed mob-boss James “Whitey” Bulger (hereinafter, the “Defendant”).

When the Defendant’s case is discussed in the papers, I seldom see that nasty A-word in his title. It is generally things like ” Lawyers for mobster James ‘Whitey’ Bulger…” or “Bulger, the former leader of the Winter Hill Gang…”

I apparently slept through that trial during which he was convicted of being a mobster or leader of the Winter Hill Gang. Oh well, at least we are going through the motions of pretending he is not really already found guilty of the murders for which he is to stand trial.

Anyway, his case is due to be coming back to Boston’s federal court on Wednesday. It is the continuing battle of discovery between the defense and the government. The battle pits the court between giving the defense a shot at what could be claimed to be a fair trial and shoving the case through to trial and geting it over with.

The Defendant’s lawyers have been sparring with prosecutors over the mountains of material expected to be used at the trial now scheduled for November. The defense argues that said mountain was a disorganized mess so that it is impossible to make sense of it all and adequately prepare for trial in time for the November deadline. The prosecution is basically taking the position that they should not be penalized for giving so much of their case away to the defense in their never-ending quest for peace, justice and the American way.

Interestingly, there is a bit of irony here. In federal criminal cases, the argument is usually that the mountains of discovery (albeit usually more organized) come too close to the trial so that the defense is not given the opportunity to be adequately prepared for trial.

Well, last month, U.S. Magistrate Judge Marianne Bowler told the two sides to cooperate with one another.

I guess Wednesday we will find out if the “Don’t Fight, Play Nice” Order has solved the problems of the two diametrically opposed sets of advocates readying themselves to clash over the fate of one man’s life.

Theoretically, at least.

Attorney Sam’s Take Federal Criminal Matters And Discovery Battles

While there is certainly more to complain about for a federal criminal defendant, battles about discovery are common in civil and criminal cases everywhere.

“What exactly do you mean by ‘discovery’, Sam?”

Discovery refers to aspects of the case, and its evidence, which one side must give to the other so that both sides may be as prepared for trial as possible. The idea of “trial by ambush” is really not acceptable any more in federal or state court, at least, when it comes to criminal matters.

Again…figuratively. However, we will get to that point alittle later.

Because it is the government’s burden to prove its case, and because only the government really knows what evidence the government has in its arsenal in a given case, the government must give certain records, testimony, etc. to the defense so that it can prepare for the onslaught of accusations. In turn, the defense has to give certain things over as well…after the government has satisfied its obligation.

“So, the government has to write up a whole statement naming all its evidence?”

Not really. It has to give over certain items already created which include the evidence. For example, any prior testimony in the matter by witnesses, such as Grand Jury testimony, recorded statements, wire taps, police reports and the like that the government seeks to use must be turned over.

“Why do you keep saying ‘seeks to use’ and ‘certain’ records?”

Because, as always, there are exceptions and there are gray areas. There are competing interests here. The defense wants to get anything possible in order to know everything possible it might be able to use at trial, whether in its direct case (if any) or on cross-examination. However, the government has an interest to limit such access.

“How can they do that?”

Well, there are a number of ways. The most common are that the government is trying to protect certain people who fear retribution by the Defendant, the need for secrecy as to other ongoing investigations, relicense to this particular case and the federal procedural rules which protect the government a great deal as to what needs to be turned over and when.

“But, the government’s primary responsibility is to seek Justice and a fair trial, right?”

Yeah….about that.

“Well, have there actually been cases where the prosecution does not give what it is supposed to give to the defense in federal court?”

Let’s continue this chat in Monday’s blog. There is a lot to be said about it.

In the meantime, have a great, safe and law-abiding holiday weekend!

For the original story upon which this blog was based, please go to

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