Thursday, May 02, 2013

There Oughtta Be A Law ...

Photo of James J. Bulger, who is an FBI Ten Mo...
Whitey Bulger
Yeah, you don't hear me saying that very often, do you?

There ought to be a law forbidding judges from "barring" any defenses those charged with crimes want to put to juries. Like this:

The new judge presiding over the James "Whitey" Bulger case has granted prosecutors' motion to bar the reputed mobster from arguing immunity at trial. ... Bulger's lawyers argued they should be able to present a trial defense claiming that a law enforcement official who has died gave Bulger immunity from prosecution.

In my semi-informed opinion (based mainly on the book Black Mass: The True Story of an Unholy Alliance Between the FBI and the Irish Mob, by Dick Lehr and Gerard O'Neill), Bulger can probably make a pretty good argument for the proposition, although he's attempting to attribute the immunity to a conveniently dead prosecutor (Jeremiah O'Sullivan) rather than to the FBI agents (John Connolly and John Morris) who were most active in protecting him as a "confidential informant" even as he built and presided over an organized crime empire in South Boston.

Maybe you can see the problem in this particular case:

The judge works for the same political establishment that is alleged to have been compromised to the extent that it would give Bulger immunity.

Wait, check that. It's not just "alleged" -- Connolly was charged, tried and convicted over it and Morris received ... ahem ... immunity in return for testifying against him.

That establishment wants to throw a few individuals under the bus and disown them and their actions instead of accepting the consequences of corruption that ran way up the political ladder.

Bulger's status a a confidential informant had to be approved at, and supervised from, the top echelons of the FBI and Justice Department, and that approval/supervision worked its way back down the ladder to people like US Attorney O'Sullivan, who implemented the immunity agreement by e.g. excluding Bulger from indictments even though the evidence was there to convict him.

Now, it's possible, maybe even likely, that jurors would disbelieve Bulger's claims, or convict him even though it believed the claims, were he allowed to present those claims. But that decision should be left up to them, not to the discretion of a judge running interference for the establishment.

I'd even advocated for extending the logic in this particular case to all cases. If some guy wants to argue that Satan possessed him to kill a prostitute, or aliens threatened him with a death ray if he didn't rob a bank, or whatever, let him do it. A jury is either competent to weight arguments, or it isn't. If it is, it should have unfiltered access to the arguments. If it isn't, why the hell do we have juries in the first place?
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