Whitey Bulger Trial Begins Today: a Lesson in Real Life Mafia Crime and How Organized Crime Works (and Succeeds).

Whitey Bulger's Mugshot

Whitey Bulger goes on trial today and while I haven't been following this case before now, I'm suddenly fascinated with what is happening up in Massachusetts starting this week. So I'm going to be posting about the case, sharing what I'm learning with you, Dear Reader.  
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Today, the trial begins in a Boston federal courtroom for James (”Whitey”) Bulger, who was on the lam for 16 years before getting nabbed by the Federal Bureau of Investigation in Santa Monica, and it’s a big deal.

He’s facing charges of racketeering as well as 19 separate murder charges and his pretty blonde girlfriend, Catherine Greig, has been busted too (she already been convicted and sentenced to eight years incarceration for helping Whitey hide from the law).

Starting tomorrow, 675 people who make up the jury pool will begin the process of making their way to the Moakley Courthouse each morning as the judge and attorneys on both sides work to find 18 people out of that group to serve as the 12 jurors and 6 alternates in a trial that is sure to take months and months to complete.

Whitey Bulger Story is a Fascinating Story to Many:  Best Sellers, Big Movie 

This is a big deal for many people, in many ways. There’s already a couple of bestselling books detailing the life of this alleged mobster, and there’s also a big time movie in the works. (Johnny Depp was cast to play the role of Whitey, but he quit this week in an apparent salary dispute.)

The details of this federal trial are going to be a real-life education for many of us that heretofore learned about organized crime through Mario Puzo’s and Francis Ford Coppola’s Godfather series or perhaps watching the TV series, The Sopranos. 

 No fictionalized version of things this time. Follow this trial carefully and it may prove better than any award-winning fiction.  This is the real deal, and it's pretty darn spooky (and this from reading only the pleadings filed in the public record.)

Lessons in Real World Organized Crime: The Structure of the "Cosa Nostra"

Consider this from the live pleadings, the Fourth Superceding Indictment, where I for one learned lots of different descriptions for what the movies refer to as the “Cosa Nostra” in the movies and how the organization works, as well as the charges that have been brought against Whitey Bulger. 

 Summarizing from the first few pages of this indictment:

1. Since1965, both in Massachusetts along with other parts of the country, there has been a “secret criminal organization” which has several nicknames among its membership including:

• "La Cosa Nostra"
• "stu Cosa"
• "The Mafia"
• "This Thing of Ours," and
• “This Thing”.  (Who knew?  I never heard of "this thing" for the Mafia before, did you?)

2. The secret criminal organization is efficiently structured into groups called “Families" which operate all across the United States. The Families are overseen at a national level by a national “"commission" which is headquartered in New York City. The Commission’s membership are the leaders of each “Family” known as their "Bosses."

3. The indictment describes one of these Families as follows:

• “The Patriarca Family of La Cosa Nostra (the "Family"), which operated in the Districts of Massachusetts,on July 11, 1984 and who was then succeeded by his son, Raymond J. Patriarca, aka "Junior," until he was succeeded by the defendant FRANCIS P. SALEMME.“
• “The Patriarca Family existed and acted in conformity with the rules of La Cosa Nostra (LCN).“

4. Within the the Patriarca Family, the organizational chart involved the following:

1. The head man (or CEO as it were) is the "Boss."
2. His right hand man is the "Underboss."
3. His advisor and counselor is the Family’s "Consigliere."
4. Below the Underboss are a number of "Capo Regimes" or "Capos", men who are each in charge of a group of members who are their “crew.”
5. Within the crew, each member is a “made man” known as a “Soldier.”
6. Associates to the family are those who help the organization succeed and act with the Family members but these Associates are not officially “made” members of the Family.

5. The Family’s business operations were definitely for profit. According to the indictment, this Family gained revenue from a variety of illegal operations such as “…illegal gambling, extortion, loansharking, and narcotics distribution businesses and the collection of unlawful debts.”

6. In Massachusetts, there was a separate criminal organization known as "The Winter Hill Gang" and "South Boston." James “Whitey” Bulger was the Boss of the Winter Hill Gang.

7. The Winter Hill Gang acted with “...the purpose of controlling, supervising, financing, and otherwise participating in and deriving income from illegal activities, including illegal gambling, extortion, loansharking, and narcotics distribution businesses and the collection of unlawful debts.”

8. The Winter Hill Gang was competing with La Cosa Nostra in the New England area in these illegal marketplaces (gambling, extortion, drugs, etc.)for many years, viciously and successfully.  Things got ugly.

More in my next post.

Limitations, Really?? Ken Anderson Appeals Court of Inquiry's Contempt of Court Finding in Michael Morton Prosecutorial Misconduct Case

Alfred Hitchcock made movies about this:  the innocent man caught up in the system, no one believing his innocence.  John Grisham has made millions with the same scenario.

However, for Michael Morton it was the real thing: not only did Mr. Morton endure the murder of his young wife, the mother of his young son: he was arrested, charged, and convicted of that homicide by the State of Texas.

While his son became a man, Morton sat in a cell having been found guilty of the horrific beating death of his wife with a stick of wood.  No one believed his story that a stranger had killed her after Morton had left for work.  No one listened to the tiny boy explain that it wasn't his dad but a "monster" that hurt his mommy.

There's no air conditioning in Texas prisons, did you know that?  Think about spending 25 summers behind bars in a hot Texas summer where temperatures get well over 100 degrees: it's what Mr. Morton did until Houston civil trial lawyer John Railey almost single-handedly proved him to be an innocent man.

Now Michael Morton is free and dedicating his time to spreading the word about wrongful convictions and how easily these things can happen.

If there's not a movie being made of his story, then there should be.  Thing is, the story's not over.  

Enter the Black Hat.

Long ago, in that criminal courtroom where Morton heard the jury foreperson announce that "guilty" verdict, a man named Ken Anderson sat at the prosecution table.

Anderson went on to run for district judge, and served many years on the Williamson County bench overseeing trials of other citizens.  Until the Morton case came back to bite him.

Last week, Judge Louis Sturns - presiding over a special Court of Inquiry ordered by the Texas Supreme Court - issued his ruling in the case.  Judge Sturns found that Ken Anderson intentionally hid evidence during that murder trial long ago that would have kept Morton out of jail.

Judge Sturns found a prosecutor intentionally held back evidence and in doing so, allowed an innocent man to go to jail for the murder of his wife, presumably to spend the rest of his life behind bars.

Clearly, Ken Anderson didn't lose much sleep over the decisions he made back then; he campaigned for higher office and he's fought against these charges of misconduct.  No admissions here, no chagrin, no remorse.

And if I felt any compassion for Judge Anderson, and it's pretty hard to find that right now, it just went out the window as I read today about his appeal of Judge Louis Sturn's ruling.

Get this.  Anderson is arguing that the Court of Inquiry has essentially been an albeit interesting waste of time because none of it matters.  Anderson's argument?  Time bar.

That's right:  Ken Anderson is arguing that he's immune from the contempt order (and its accompanying jail time) because the statute of limitations shields him from any punishment.

|  Read the Court of Inquiry ruling here.  |

This shocks me.  I understand being terrified of going to jail as a longstanding prosecutor, that's not only humiliating, it's also very dangerous.  I get it.  I get fighting against that possibility.

However, for someone who has served as prosecutor and district judge for all these many years, I expect some sense of honor and integrity and respect for the system.

Limitations?  Really?  

Consider by comparison the actions of Travis County's District Attorney Rosemary Lehmberg, 63, after she was arrested for driving while intoxicated (DWI) earlier this month.

She wrote a letter to the County Attorney and "the Judge of any Court of Jurisdiction," stating in part (read the full letter here):

Please accept this as my Plea of Guilt to the Charge of Driving While Intoxicated, arising from my arrest on 4/12/13, for whatever level of offense is determined to be justified by the facts. 

I enter this unconditional Plea without request for delay, without legal argument by counsel, without any plea bargain, and without any request for leniency or consideration of any type.

I am guilty of DWI and of acting unreasonably and the fault is all my own. I am deeply sorry for my actions.  I apologize to the citizens of Travis County and specifically to the dedicated officers and employees who had to deal with my violation and any disrespectful conduct after my arrest.

Further, I agree to appear, without delay, to enter this plea and I accept whatever assessment of jail time is deemed appropriate by the sentencing Court.

In addition, I agree to waive any right to consideration of probation and waive any right of appeal of my guilt or my punishment, whatever it may be.

Austin's District Attorney did the right thing, in my opinion, and did so with dignity.  She has been sentenced to serve 45 days in the local hoosegow for driving drunk, and I expect she'll serve that term honorably, too.    Too bad that Ken Anderson isn't cut from the same cloth.

Herman Cain, Politico, and the Sexual Harassment Claims Story Continuum

Right now, I assume you've heard about the Politico story about two women who settled sexual harassment claims involving Herman Cain, and got some kind of payment in exchange for not pursuing the matter further and for keeping their mouths shut about the whole thing in the future.

It's causing a lot of controversy. 

Here's the thing:  first of all, I'm betting we are all going to know the gory details sooner or later, confidentiality agreement or not.

Second, after the facts are known, I am not at all sure that this will mark the end of  Herman Cain.  Some think it will (or that it should).  

Maybe it will if the facts are analogous to the case of Judge Samuel Kent.  I don't know that it will if the facts are analogous to those of Justice Clarence Thomas.

Justice Thomas survived those televised hearings with Anita Hill’s testimony about the Diet Coke, among other things. Sure, some sordid details.

Didn't matter.

However, it was a different story for federal district judge Samuel Kent once all the facts came to light in his case.   There was testimony of years of aggressive sexual misconduct on the part of Judge Kent provided by two of his female employees to the House Judiciary Committee as part of his impeachment hearings (there was a criminal proceeding in Texas, too). 

Former Judge Kent sits in home confinement right now, after serving all but three months of his 33 month sentence in a federal jail cell -- far far away from where Justice Thomas sits today up in Washington.

Bottom line:  IMHO, if the Cain story is closer to Kent than to Thomas, and that story is revealed to the public, then I agree, he’s a goner.    However, right now, with just the Politico story … I don’t think Herman Cain’s campaign is doomed.  At all. 

DNA in the Amanda Knox Case: Experts Refute DNA Evidence Successfully

Wired has a great article today detailing the problems found in the DNA evidence presented by the prosecution in the Amanda Knox murder trial, written by John Timmer for Ars Technica and entitled, "Courtroom Science Drama: The Saga of Amanda Knox’s DNA."  

One of their experts is Dr. Lawrence Koblinsky of the John Jay College of Criminal Justice in New York.  You may have seen him on TV.

Point being that the DNA evidence used in the Knox trial not only served as a major tool for the prosecution to have Amanda Knox found guilty of murder, it was also a key factor used by her defense team on appeal to achieve her release.  Arguments post-conviction included not only that Italian law enforcement may have compromised the DNA evidence during their investigation, but also that DNA evidence found on the murder weapon (a knife) was miniscule and irrevocably tainted in the attempt to amplify that tiny amount into something bigger and therefore, easier to analyze. 

My prediction: the Amanda Knox case will serve to publicize the weaknesses in DNA evidence and more criminal defense attorneys - both at trial and on appeal - not only will spend more time and effort challenging DNA evidence, the likelihood is increasing that their efforts will be worthwhile. 

dna, evidence, trial, technology, crime

DNA Evidence Can Be Faked - So Why Do We Continue to Consider DNA Infallible?

DNA is easier to fake than fingerprints at a crime scene, according to scientific experts, and this is something that's been public knowledge for several years now.  Read the 2009 article in the New York Times, for example; written by Andrew Pollack, entitled "DNA Evidence Can Be Fabricated, Scientists Show," it's got lots of details.  Or go peruse the research paper written by Dr. Daniel Frumkin in Genetics, a source mentioned by Pollack in his coverage. 

Why Don't We Know That DNA Evidence Is Not 100% Trustworthy?

No one talks about this much, and I wonder how many people really know that we cannot trust DNA just because they do it on TV.  Heck, in one Law and Order: Special Victims Unit episode, even the TV cops found out that the DNA in their case had been faked.  (If you're interested in watching, that was episode 9 of season 11, entitled "Perverted." Watch it here.)

Faking someone's DNA is easy to do, and it doesn't take all that much skill or education.  Apparently, all an evildoer would need is the saliva sample of one person - which they could get off a tossed coffee cup or drinking straw or fork or spoon (well, you get the idea), or from a hair sample, again something that could be pulled from the trash.  Then, through a process called "whole genome amplification," the evildoer can create fake DNA samples of that person which evildoers, being what they are - evil doing - could use to cause all sorts of mayhem. 

But that's not the whole story.  It's even easier that this for the sinister scientist who wants to fake someone's DNA.  If they don't have that tossed coffee cup or hair from a comb, no problem.  DNA can also be faked if they can get access to the person's DNA profile, stored somewhere in a computer database.  They can cook up some fake DNA using the info on the database as their recipe.

So, why aren't we being told about this?  We all need to know that DNA isn't infallible, that we shouldn't automatically trust DNA evidence. 

Why?  Well, I'm just as concerned about overzealous prosecutors as I am about outlaws taking advantage of this opportunity.  Seems to me that it is only by greater public awareness that this can happen (and that questionable DNA evidence can be tested to see if it has been faked) that an evildoer trying to plant DNA evidence for sinister purposes can be thwarted. 

Troy Davis and Judge Moore: What Was the Evidence in this Case?

Troy Davis was executed by the State of Georgia, despite all the controversy surrounding whether or not this man was innocent of killing a police officer, long ago, in the parking lot of a fast food restaurant.  Since the execution, I've read all sorts of stuff on the web about this case - from Ann Coulter to Alec Baldwin - and it's left me wondering: okay, what WAS the evidence in this case?

Earlier, I posted what I understood to be accurate - that the majority of the eyewitnesses had recanted and that there was no physical evidence presented by the prosecution at the trial where Troy Davis was convicted.  Was this true?  (No.)

Also, I wrote that the United States Supreme Court had done something very unusual when they sent the case down for an evidentiary hearing before a district court judge (Judge William Moore of the United States District Court for the Southern District of Georgia, Savannah Division).  As I recall, this was the first time that the High Court had done this in around 50 years.  The federal trial court judge would serve as a fact-finder, grading the papers of that Georgia jury. 

Interesting - a single federal judge given the opportunity to overturn a state jury.  Think about that, it's a big deal. 

So, after pondering all this, I went to the very long opinion that Judge Moore issued in that unusual hearing, and I have posted it at Google Docs for anyone who wants to read it (it's almost 150 pages, and it appears in two parts):

Judge Moore's Opinion re Troy Davis Part One;
Judge Moore's Opinion re Troy Davis Part Two.

The evidence that was considered in the Troy Davis case is presented at the beginning of this opinion.  After that, an analysis of that evidence under a "clear and convincing" standard is given; a standard not as stringent as that of "beyond a reasonable doubt," as discussed on page 80 of the Pattern Jury Instructions of the Eleventh Circuit.  (Judge Moore spends significant word count explaining the burden of proof he believes applies in his determinations.)

Bottom line, it is this opinion that I think everyone should be reading before they consider the words of political commentators - Judge Moore obviously wrote this opinion with the expectation that many eyes would be reading and reviewing his work. 

• Was there physical evidence?  He discusses shell casings found at the scene of the crime.
• Why wasn't he swayed by the eyewitnesses who recanted?  He goes into detail, witness by witness, regarding what they said then and now.

Did the State of Georgia execute an innocent man?  I don't know.  I do know that I learned something from this opinion and I wish I had read it, in all its details, long ago instead of reading a lot of the other stuff out there on this case. 

Circumstantial Evidence vs Direct Evidence

Can we trust circumstantial evidence?  Sure we can.  And we do.  Rather than use my own words to explain why, I'll leave it to the United States Supreme Court in the landmark case, Holland v. U.S., 348 U.S. 121, 140, 99 L. Ed. 150, 75 S. Ct. 127 (1954):

Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

For Those That Distrust Circumstantial Evidence, Direct Evidence Isn't That Reliable

There are those that may argue that direct evidence, especially in a murder case, should be the only evidence used to convict.  However, in our imperfect world there usually isn't much direct evidence in most crimes -- and the direct evidence that may be had might not be the most reliable.

Eyewitness testimony is notoriously unreliable, for example - and you can't get more direct that a witness glaring at a defense table, pointing his finger and crying out, "he did it!" 

Meanwhile, the slow and tedious introduction of pieces of circumstantial evidence, as time consuming as it might be, can provide a clear picture of the truth - I like to think of it as a "Lite-Brite" of sorts.  Remember Lite-Brites?  They were toys were white lights were hidden by thick black paper on a screen, and you had oodles of plastic buttons, or pegs, that you pushed one at a time into that black nothingness until an image emerged. 

Perhaps those that distrust circumstantial evidence are more concerned, really, with the burden of proof that the State in a criminal case must meet in order to prove their case.  Twelve jurors must use what they have (from Holland, their "experience with people and events") and determine if there is any reasonable doubt left that the defendant did the crime alleged.

Doubt can remain.  It just cannot be a reasonable doubt. And logical reasoning can occur in that jury room.  If it walks like a duck, and it talks like a duck, you can infer it's a duck.  

Some Believe That Circumstantial Evidence is More Reliable That Direct Evidence

Note:  In fact, there are those in the criminal arena that find circumstantial evidence to be more reliable than direct evidence (especially when we're talking eyewitnesses).   If you are interested in learning more on that issue, I've downloaded Professor Heller's excellent article on this subject, "The Cognitive Psychology of Circumstantial Evidence," 105 Michigan Law Review (2006) at Google Docs.

The University of Michigan Law School is one of the most prestigious law schools in the country, and coming from UT Law, another top tier law school, maybe I should have found a UT Law Review article -- but I like Heller's article here and I think you will, too.