The James “Whitey” Bulger trial proceeded on Wednesday with opening statements from the prosecution and Bulger’s attorney, J. W. Carney Jr., including two varied accounts of the reputed mobster’s life and criminal career.
Bulger’s attorney made a case that the infamous Bostonian could not have been an informant because that would be “the worst thing an Irish Person could consider doing,” reports The New York Times.
Despite the early stages of the trial, both sides have managed to get into legal spats about these opening statements.
Motion to Delay Opening Denied
Bulger has succeeded in delaying his trial before, but this time his attorney argued that opening statements needed to be delayed due to new, Brady-applicable evidence.
Specifically, Bulger argued that allegations exist in this newly discovered evidence that John Martorano, the crooked agent who allegedly hid much of Bulger's misdeeds, had been protected by a Massachusetts State Trooper, and Bulger demanded the full content of the state trooper's interview subject to Brady.
That motion was denied on Tuesday, leading defense attorney Carney to accuse prosecutors of engaging in a "cover-up" and prosecutor Fred Wyshak to respond by calling Carney "unlawyerly," reports the Huffington Post.
Under Brady, the prosecution must disclose evidence that is material to guilt or punishment, which only will produce reversible error if the evidence, if disclosed, would have a reasonable probability of changing the outcome of the proceeding.
Thankfully for the trial judge, Bulger's case is still in progress, but courts are typically squeamish to deny requests under Brady for this reason. The prosecution links this recent request for Brady evidence as yet another delay tactic, similar to his past claims of immunity.
Ethical Limits on Opening
A defense attorney is charged with the ethical obligation to zealously advocate for his client, and this duty seems at its zenith during a murder trial. However, an attorney may not misrepresent facts, even during opening statements, and Carney may be skating that line when he claims that Bulger "never, ever" was an FBI informant, reports CBS News.
A proper opening statement may be couched as "the evidence will show that" Bulger was never an informant, but put in such strong terms like "never," factual claims about Bulger's informant status may border on unethical behavior.