This Boston criminal lawyer has been there many times. It is the prologue to war; the days and weeks before trial. The bigger the case, the larger the chess board. We may call it a quest for Justice, but make no mistake. For the witnesses and the lawyers, including the prosecutors, at the very least, the goal is to win. Period.

That is what trial advocacy is all about. This multiple murder case is no different.

As the pre-game setting up of the pieces concluded, last minute procedural steps were being taken in the case of The United States v. James Bulger. The major final issues? The witnesses (pieces).

Two state police detectives, including one who wrote a book about James “Whitey” Bulger are expected to testify during the upcoming trial of the aging gangster, according to federal prosecutors who released their final witness list.

Retired state police Detective Thomas Foley will be questioned as an expert in the Winter Hill gang, the powerful Somerville crew where Bulger and his henchmen got their start.

Foley was part of the FBI-state police task force that was thought to be pursuing charges against Bulger, until it was learned that corrupt FBI Agent John Connolly had been feeding Bulger inside information.

“Colonel Foley will testify based upon his experience as an organized crime investigator and his personal participation in the investigation that led to the indictment in this case,” prosecutors wrote. “His testimony will be based upon his personal knowledge as well as information acquired over the course of his career such as information from electronic surveillance, informants, and law enforcement intelligence.”

Foley wrote a book in 2012 about the state police manhunt for Bulger.

The list of eight expert witnesses also includes a former medical examiners, dental records experts, and DNA lab technicians who will testify about who Bulger’s alleged victims are, and how they were murdered. An FBI agent will be called to testify that all 30 guns found in Bulger’s Santa Monica hide out where he was found in June 2011 were operational. The government says that they plan to call approximately 70 witnesses during the trial which could last up to three months.

Meanwell, the most recent witness battle had to do with the families of those the defendant is alleged to have had killed. The defenses argued that these witnesses should not be allowed to talk about the impact that the alleged murderers had on them or their families. The argument is that this testimony would only serve to provoke emotional responses and sympathy from the jury and would have little to no probative value.

In lawyerspeak, “probative value” means evidence which tends to prove something relevant that is at issue during the case.

Court documents filed Thursday show “the witnesses should not be permitted to discuss the impact that the death of their loved ones has had on their family. This testimony would serve only to provoke an emotional response among the jury.”

These potential witnesses, of course, disagree.

Former District Attorney Gerry Leone – who is one of WBZ’s legal analysts for the trial – says try as they might, emotions are hard to control.

“I don’t know if you can tamp down emotions of victims’ families and frankly shouldn’t,” he said. “This is a public trial about heinous crimes.”

Spoken like a true prosecutor (albeit just recently left the post).

Attorney Sam’s Take On Witnesses And Sympathy

Recently Ex-Middlesex County Chief Prosecutor Leone is right in that the trial is public and it is supposed to be about allegations of heinous crimes.

By its very nature, those alleged crimes are the primary issues of the case. The purpose for the trial is for the United States government to endeavor to prove their case that Mr. Bulger committed these horrific crimes beyond a reasonable doubt.

Should there be a sentencing…and there probably will be…issues like the impact on the families will become quite relevant.

Of course, family members of victims in homicide cases are often called to testify and there are generally issues about which they may properly speak. For example, telling the jury identifying the deceased and, to an extent, filling out the picture about the deceased to the jury.

Sympathy for how the family has suffered, however, is not really relevant.

Let me put it this way. We are supposed to handle this criminal trial like we treat all criminal trials. The purpose of the trial is to determine guilt.

If a murder defendant is not guilty, then the amount of suffering of the deceased’s family is irrelevant. If he/she is guilty, then that suffering comes into issue when determining the harm that defendant, now proven guilty beyond a reasonable doubt, has caused.

This is called sentencing.

I well remember discovering the fact that there is another side to justice when I left my post of being a prosecutor in Brooklyn. It took awhile to shake off the indoctrination, so I can understand Mr. Leone’s view.

This is why it is helpful to have the understanding of both sides of these issues. Mr. Leone certainly knows his way around criminal prosecution. That, however, is only one side of the equation.

You may wonder if this really matters. After all, everyone has pretty much determined that Mr. Bulger is guilty after all. Further, it sounds like the case against him is pretty strong. So…what difference does it make?

Well, for one thing, this case (assuming there are one or more convictions) is going to be appealed. The higher courts will review whether or not the case was handled properly as to the granting the defendant a fair trial. That court will NOT start with the position that “Well, we all know he is guilty anyway. We probably did not even need a trial so who cares if it was a fair trial?” Under the law, Mr. Bulger deserves a fair trial and appeals courts will be there to see if he got it.

If he doesn’t…do we all really want to go through all this again?

This is why I have been pointing out ways in which we have seemed to throw the rule book out in this case.

Tomorrow: Be careful what you wish for!

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