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 or several for 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" Flemmi, were themselves working undercover with the FBI. Good lord, Martorano thought, I loved these men. Why I even named my kids after these good pals of mine — they were godfathers 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 No. 1: "Can you believe that scum bag?"
Juror No. 2: "Which one?"
Juror No. 3: "Yeah, I mean these guys are all rats. Ain't no honor in 'em."
Juror No. 1: "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 wake 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.•