BOSTON — In what’s become one of the nastiest courtroom battles in memory, defense attorneys for James “Whitey” Bulger have been knocking heads with the prosecution and a federal judge over when the alleged murderer will go to trial. The government insists anything past March is unacceptable, the judge says March is still on, but the defense says it can’t possibly be ready.
‘A Broken Record’
“You are starting to sound like a broken record,” federal Judge Marianne Bowler told Bulger attorney J.W. Carney Jr. during a hearing Monday as he struggled to move the trial date to May or later.
“That’s because we are a broken record, we are a broken record, we are a broken record,” Carney responded.
Back in August, Carney told the judge that he wanted to “get all the documents related to James Bulger that are in the possession of the federal government. Because we are doing that the government is criticizing us. Well bring it on.”
And as the judge continues to remind him, be careful what you ask for. Because Carney got hit with a tidal wave of 300,000 pages of evidence and 1,000 tapes, with a mind-boggling number of duplicates, many of them redacted and in disarray, Carney charges.
Status hearings, normally tepid affairs, spark up like a bonfire in debates over how the mountains of paper will be organized, by whom, and what will remain sealed and protected.
“Enough is enough. Today was ridiculous, if you ask me,” Thomas Donahue, a relative of one of Bulger’s alleged victims, said outside the courthouse. “It’s just frustrating to the families. It’s actually aggravating is what it is. Coming here to hear him cry, ‘I need more time for this. I need more time for that.’ ”
Inside the courtroom federal prosecutors take the same line, accusing Carney of trying to stretch and stall so Bulger can die before going to trial. And the normally temperate Bowler has accused Carney of “grandstanding” and told him to stop “crying” and “wrap his mind” around the material to get ready for trial in March.
‘Justice Delayed Is Justice Denied,’ But…
“Even though he’s an incredibly unsympathetic defendant, he’s still entitled to a fair trial,” said Susan Bocamazo, publisher of the influential Massachusetts Lawyers Weekly, which recently wrote an editorial on the battle.
Bocamazo says the interest of justice requires that the trial date be moved back.
“We estimated that going through all those documents would take 1.65 years,” Bocamazo said. “Just to go through them. How could he be prepared to go to trial in March?”
The case that will go to trial here in Boston addresses 19 murders and is stunningly complex. Former U.S. Attorney Allison Burroughs, now a private attorney at Nutter McClennen & Fish, once prosecuted organized crime, drug cases and economic crimes.
“I think justice delayed is justice denied, but you can’t force a defense attorney to trial when he’s claiming he’s working conscientiously and can’t get the materials reviewed,” she said.
Harvey Silverglate, an attorney and civil liberties advocate, is more sympathetic.
“It is impossible for one, two, three or even four lawyers to prepare this case for trial on the current schedule,” Silverglate said. ”That for me is the definition of a rush to judgment.”
For the prosecution and the families of murder victims who want to see the 83-year-old Bulger brought to trial and convicted before he dies, delay is bitter, the pressure unbearable.
Steve Davis, brother of murder victim Debbie Davis, stalked reporters outside the courthouse Monday.
“It’s getting all the families upset and I’m getting tired of it,” Davis said.
But remember, the Department of Justice and Massachusetts’ U.S. Attorney Carmen Ortiz could have quickly put Bulger on trial in California, where he was living and arrested. The case there was simple and straightforward: a felon and a fugitive in possession of guns. Burroughs says that trial would have taken no more than a couple of days.
“If the goal is a quick and final conviction, California would clearly have been the better place,” Burroughs said.
Bulger could have been tried sooner and in simpler cases in Florida or Oklahoma as well, Burroughs says. But Ortiz and the Department of Justice chose to try Bulger first here in Boston — in the most complex and time-consuming trial of all — in large part to allow all the families of 19 murder victims see justice done at the same time. That decision carries the risk that Bulger may die before the end of the trial.
“The victims may have made their own bed here … by insisting it be tried here first,” Burroughs said.
As the Lawyers Weekly editorial asserts, pressure to go to trial quickly may create solid grounds to appeal any conviction that might come. And if Bulger were to die while his conviction were on appeal, the conviction would be dismissed. Then, by their own logic, the families would be robbed of justice.
“If this case is tried early next year, I don’t see how anybody can have confidence that the case will have resulted in a fair trial and an accurate and fair verdict.” Silverglate said. “This is a huge mistake.”
Ortiz declined comment on the case and the editorial.