Some of the most vital lessons a criminal defense attorney can learn are only learned through experience. Today, the lead attorney for accused mass murderer and FBI informant James “Whitey” Bulger demonstrated one such lesson.
I have discussed this case many times both on the radio and in my daily Attorney Sam’s Takes. The rapidly approaching trial date is, and has been, at issue.
The main issue of today’s hearing was the attempt by Bulger’s team, led by J.W. Carney, to gain the public release of evidence which the defense says is necessary to prepare for Bulger’s defense for his murder trial.
That argument was fairly successful.
At one point, however, Attorney Carney was accused by the court of “grandstanding”. Apparently, the allegation came after Carney mentioned once again that he does not really have enough time to fully prepare for trial by the currently scheduled date.
As mentioned, this is not a new complaint.
While Carney did not really move the court to move the current court date, United States District Court Magistrate Judge Marianne B. Bowler told him, “The trial date remains firm”.
This apparently led to a heated debate, during which Carney cut the judge off.
The judge reminded Carney not to cut her off.
Carney’s first response was, “I’m interrupting your interruption.”
This type of thing happens more than you might think it does. Judges and attorneys often clash because of their respective positions and, as with all human beings, sometimes tempers get the best of us.
Apparently immediately realizing that he had crossed the line, Carney said, “Respectfully your honor. I’m sorry for saying that.”
The mistake had been one that any of us could have made. The instant recovery, however, is attributable to the level of experience and professionalism that Attorney Carney has accomplished.
Attorney Sam’s Take On Battles In The Trenches
Abraham Lincoln is credited with once having said that it is better to remain silent and allow folks to believe you a fool than to speak up and remove all doubt. In fact, one of the most important lessons I learned years ago when I was a prosecutor in Brooklyn was to know when to shut up.
While it is not always possible to do so in our private lives, any experienced trial attorney will tell you that, in some cases, you have to step down or remain silent in order to not damage your situation further.
You know how I always tell you that to try to out-talk, out-run or out-fight a police officer is a fool’s errand? This is because the police will win in such circumstances. The police have the power in the situation.
In court, the judge has the power. True, attorneys can appeal a judge’s ruling…but that takes place after the tempers have subsided. On the other hand, one wants to be an effective advocate for the client which often means coming on strong.
The trick is to know when to fight and when to back down. The trick is also to be able to back down when every corpuscle dancing around in your body is dancing around in a frenzy, looking to attack.
Whatever you think of either Bulger or criminal defense attorneys…just think of it.
You have been charged with ensuring that your client is given a fair trial. The case is infamous and so your every move, both now and during the trial, is being second-guessed by idiots like me every day. Everyone else in the system and the press treat the case as an utter waste of time. Everyone is already convinced that your client is guilty as sin and he has become one of the most hated personalities in the Commonwealth.
You work hard on the case, while you also try to maintain a practice and, perhaps, whatever semblance of a personal life you have thus far managed to cling on to. Do you think there is alittle pressure there? Well, let’s take it further into the light of reality.
Any defense attorney who has handled any cases in federal court will tell you that the punishments are harsh and the rules of discovery are unfair. They are unfair because the defense is usually not given some of the most important discovery until shortly before the trial. Somehow, in that short time, counsel is supposed to read, investigate and digest the material and all that it reflect at the same time as prepare this case for trial.
In this case, even before given that material, the government has loaded the defense up with, according to Mr. Carney, mountains of disorganized material which he must go through. I also remind you that this prosecutor’s office has been shown a number of times to have violated its obligations regarding discovery.
Now, Mr. Carney knows that his client is not going anywhere while this case is pending. So, whatever concern there may be that he is a threat to humanity is virtually abated for now. Or it should be. So, perhaps he thinks, “Gee. I have to do the impossible here and digest more than a human being can digest in an attempt to get as close to a fair trial as I can get given the fact that the local world is already convinced of any allegations the government wants to throw at him. What is the harm if the court gives me a little more time so I can do a more thorough job and perhaps avoid a heart attack in the meantime”.
The answer, however, is a solid “No”. These facts are details which simply do not seem to matter.
The lip service we usually give to the idea of “presumption of innocence” has long since been dispensed with in this case. However, there is one man who cannot simply shrug his shoulders and go along with the tide. It is Mr. Carney. Apparently, he seems to believe in the job that we both share.
So, at the very least, perhaps you can understand the frustration that he must be feeling in this situation. He faces a “justice” system which is really telling him, “Oh, come on, J.W.! Can’t we just get this over with already?”
And yet…in the heat of the battle…he is able to instantly catch himself when he crossed the line and…get this…apologize.
How often do you see a lawyer do that in public?
For the original story upon which this blog is based, please go to http://www.bostonherald.com/news/regional/view.bg?articleid=1061165574&srvc=rss