Jun
22

A Killer of a Witness

    I’ve a serious case of cross-examination envy as I read about the trial of United States v. James “Whitey” Bulger, now pending in Boston. I mean, how often, if ever, do you get to go toe-to-toe with the likes of John Martorano in the well of an open court?  Martorano scored the deal of the century with federal prosecutors: They forgave him his 20 murders in exchange for an agreement to testify against Bulger, the former reputed organized crime king in Boston.


    Well, okay, forgiveness is an overstatement. Martorano was sentenced
to all of 12.5 years and spared a death penalty for several of his 20
murders. That’s roughly 7.5 months per body.  I guess it’s safe to say
Martorano was laughing all the way to the morgue.

    So there sat Martorano on the stand, telling jurors of his heartbreak
when he learned that Bulger and a former associate, Stephen “The
Rifleman” Flemmig, were themselves working undercover with the Federal
Bureau of Investigation. Good lord, Martorano thought, I loved these
men. Why I even named by kids after these good pals of mine -- they
were god fathers of a different sort to bone-of-my-bone,
flesh-of-my-flesh.

    The trial quickly descended into a bizarre pissing contest.

    “I’m not a rat,” you can all but hear Bulger hissing -- “You’re a rat.”

    Never mind the trail of dead bodies both men are alleged to have left
in their wake. The trial has become a test of tough-guy honor. Bulger’s
lawyer sneered at Martorano for joining ‘the government’s team.” The
shame of it all.

    Maybe all this plays with a Boston jury.

    Juror Number One: “Can you believe that scum bag?”

    Juror Number Two: “Which one?”

    Juror Number Three: “Yeah, I mean these guys are all rats. Ain’t no
honor in ‘em.”

    Juror Number One: “Let’s vote not guilty; send the government a
message.”

    All jurors: “Good idea.”

    It’s a plot line for a moving starring the likes of the long-deceased
James Cagney.

    Like I said, maybe it plays in Boston.

    Given what’s going on in the Connecticut jury pool these days, I doubt
the defense would carry much weight. Our jurors are in a
Government-loving frame of mind. The other day, I was commiserating
with a few friends. All commented on how quickly federal jurors were
returning guilty verdicts at trial in recent cases. Are jurors even
stopping to debate the merits of the cases before them, or do their
eyes just glaze over during the government’s new Powerpoint displays at
closing argument?

    Consider the trial of Evan Cossette, the Meriden cop just convicted of
a federal felony for pushing a drunken detainee and then lying about
it.

    A friend and colleague is one of the state’s top civil lawyers in
defense of cops accused of misconduct. He attended the Cossette trial
and was stunned by the return of a jury verdict. He knew that if he
were defending Cossette in a claim for money damages, odds are Cossette
would have tap-danced out of the courtroom a happy man.

    But in this case, the United States Government took aim, and a jury
convicted.  Wow, he thought. How could this happen?

    I suspect the answer is simple. We’re still swimming in the wale of
9/11. Jurors want to trust someone. Safety, or the illusion of safety,
sells. Forget the law at trial. Jurors are just looking for the safest
shadow cast. In a civil case pitting a citizen against a cop, the cop’s
shadow represents safety. But in a criminal case pitting a cop versus
Uncle Sam, the Government’s shadow casts a broader cover.

    The gamble in the Bulger case is that jurors will feel betrayed. The
Government is willing to trivialize killing when its friends are the
trigger men. Why, then, prosecute another man accused of doing the same
thing? It takes uncommon courage to scorn the hand that protects you.

    There might have been a time and place for such a defense. I doubt
today’s the day. Jurors don’t want to know too much truth. They just
want the Government to tell them what to do to feel safe.

    Even so, I’m watching the fireworks with the envy of a warlock:
cross-examining John Martorano simply looks like good fun. If only it
were possible to put Uncle Sam himself on the stand to see if he’s
capable of blushing.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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