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October 16, 2013

Intriguing controversy over victim involvement in Whitey Bulger sentencing

This new National Law Journal piece, headlined "Judge Asked to Trim Victim Statements in Bulger Sentencing," reports on a notable legal debate in the run up to a high-profile federal sentencing scheduled for next month.  Here are the details:

Lawyers for accused mobster James “Whitey” Bulger and the Boston U.S. Attorney’s Office are facing off about whether victims of crimes for which he was acquitted should be allowed to speak out during his sentencing hearing next month.

The dispute highlights the wide discretion that federal judges hold in weighing evidence a jury rejected when passing sentence. In August, a jury found Bulger guilty of 11 of 19 murders that were predicate acts in the racketeering charges. Bulger also was found guilty of numerous additional racketeering and conspiracy offenses including extortion, narcotics, money laundering and firearms charges.

On Friday, prosecutors asked District of Massachusetts Judge Denise Casper to deny Bulger’s motion to exclude certain victim-impact statements from his November 13 sentencing hearing — specifically, those by family members of victims of crimes for which Bulger wasn’t convicted.

“Given the tumultuous history of this case and the backdrop of the inherent frailties of the Government’s witnesses, the Court should exercise its discretion by not considering acquitted conduct because to do otherwise is an insult to the jury process,” they wrote. “The jury has acquitted James Bulger of numerous murders he was accused of, and for which the government’s own cooperating witnesses are responsible. The sanctity of a jury's verdict should not suffer second guessing or be disrupted,” said Hank Brennan, of counsel to Boston’s Carney & Bassil, one of Bulger’s lawyers.

It’s relevant that Bulger was part of the criminal enterprise that killed all 19 victims, said Assistant U.S. Attorney Brian Kelly, chief of the public corruption unit in Boston.... “The fact that they found him guilty of [only] 11 murders doesn't mean that the other victims of the criminal group shouldn't have a say at sentencing,” Kelly said....

There’s very little case law on point and what there is grants courts wide discretion over what to consider at sentencing, said Jeff Steinback, a Chicago criminal defense lawyer who served on the U.S. Sentencing Commission’s practitioner advisory group between 2010 and 2012. “It’s always tricky, and there’s always a balancing act inherent in the process,” Steinback said.

This dispute seems very unlikely to have any substantive impact: given Bugler's age and the seriousness of his crimes of conviction, it is a near certainty that he will be getting a formal or functional life sentence.  But, especially for those eager to have a chance to speak out against Bulger in court, this matter is surely of symbolic and emotional importance for the victims.  For these reasons, I would be surprised if the district court precluded any victims from testifying at sentencing.

October 16, 2013 at 08:38 AM | Permalink

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Comments

hmm interesting!

"Lawyers for accused mobster James “Whitey” Bulger and the Boston U.S. Attorney’s Office are facing off about whether victims of crimes for which he was acquitted should be allowed to speak out during his sentencing hearing next month."

What's to face off about. They are as stated "Victims of crimes for which he was AQUITTED!"

Therefore the correcte response to the U.S. Attorney's Office should be GET FUCKED! They are not part of this!

He was aquitted of those crimes. Therefore legally THEY DIDN'T HAPPEN! at least as far as THIS defendant is concerned!

But of course our current bunch of criminals running our govt have no problem using AQUITTED CONDUCT to enhance a sentence so i'm sure the little nazi wannabee's won't have a problem with this as well.

Posted by: rodsmith | Oct 16, 2013 11:21:24 PM

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