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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