^ Carmen Ortiz, United States Attorney for Massachusetts, already under fire for over-charging Aaron Swartz

Part III in this Here and Sphere series was going to focus on Punishment. But given the obsessive passions afoot with regard to the Zimmerman Case, its presentation, preparation, and verdict, we have changed the plan. Trial preparation and presentation require a strong look from us.

Thanks to TV shows like “Law and Order” especially, most Americans know a lot about what happens in a criminal case long before it goes to trial. “Law and Order” is particularly valuable because its drama includes plenty of mistakes made, bad decisions, incompetent or overreaching lawyers, disagreements about evidence, and such like. On the defense side there is always the problem of what to emphasize and how. Prosecutors face election and find themselves forced to go the route on cases in which their voting public has great interest. The media pounce on criminal cases of great interest; they cannot avoid it, nor should they. This too has consequences for justice, most of them unhappy. “Law and Order” retreats from none of it. The picture this show puts in frame is often stereotyped — but never false.

“Law and Order” succeeds because crime unthinkably violent or unjust arouses great passions. Whence arises the rush to accuse, which almost always brings more injustice.

The rush to accuse and judge has ruined many a life : one thinks of the Duke LaCrosse team fiasco, the Atlanta security guard falsely accused of bombing a fair, the national security scientist wrongly accused of sending anthrax letters, the Tawanna Brawley accusation that a NY County prosecutor had raped her. One could add many, many more such incidents.

False accusation is no minor break in the social fabric. “Thou shalt not bear false witness” is one of Moses’ 10 commandments, the ground rules of Jewish tribal law. No social mistake outranks false accusation as an act of barbarity. Still, false accusation arises from people’s knowledge that grievous crimes do occur; and who can tell, at the outset, whether an accusation is false or true ? That is why we have police detectives and investigators and why we pay them good money. To separate the false accusation from the likely true one.

Public outcry has engendered more incompetent or unwarranted prosecutions than we can count. In the 1980s it was day care centers abusing children : every case brought was eventually reversed or compromised — in Massachusetts, the Amirault Family of Fells acres — after ruining the lives of the accused. In the 1930s – and before that — it was people of color in the South accused of rape. In the 1920s it was Sacco and Vanzetti — right here in Dedham, Massachusetts.Bartolomeo sacco 1

^ Bartolomeo Vanzetti and Nicola Sacco, prosecuted almost certainly wrongfully and executed after seven (7) years of world wide protests.

In 1692 in my home city of Salem, also in Massachusetts, it was men and women accused of witchcraft.  In the South, from the late 1880s until the Second World war, many black men didn’t even get an unfair trial but were simply lynched…

a lynching

^ injustice at its most passionate…

To return to the present, New York City’s Brooklyn prosecutor is now investigating 50 convictions based on what looks like perjured testimony, doctored confessions, and prosecutorial misconduct.

David Ranta

^ David Ranta, freed in NY after serving 22 years for a rape he almost certainly did not commit

A victim is required. No matter who or how. Prosecutors and police staffs work with that as a backdrop. It is not pretty and it is wrong.

Jurors, too, feel the heat. Juries in high-passion criminal cases are sequestered and their names impounded. We do this so that passion people cannot threaten or otherwise intimidate jurors, at trial and after verdict. It is a wonder that, given this pressure, people are willing to serve as jurors at all.

In the time of Henry VIII, jurors gave a verdict unfavorable to the King at their peril. We, today, are the King.

The moral of the story is plain: the public should — must — reserve judgment; prosecutors and police must seek justice, not convictions; and juries must never be afraid to decide a case as THEY see it, not as WE see it.

In the Zimmerman matter, which we have discussed in separate editorials, very little went as it should. Injustice, incompetence — you name it. Now we turn to Massachusetts and our own three murder prosecutions. Hopefully, we will do much better than tyhe Zimmerman prosecutors and police staffs.

The three cases now under way –James “Whitey” Bulger, Dzhokhar Tsarnaev, and Aaron Hernandez — fascinate us. Murder most foul can never be grasped. It is always open and shut ; was it done, or not ? By this person, or someone else ? Murder is simple — and a mystery beyond resolution.But never beyond opinion.

Most of us have already formed an opinion as to the accuseds’ guilt and of appropriate punishment. Because this is Massachusetts, we ought be fairly sure that the prosecutions will be competent and NOT tainted by misconduct, although our history in this regard is not auspicious. We are proof that being politically progressive is no guarantee of being just about justice.


< J. W. Carney, lead defense attorney for James “Whitey”Bulger

The big danger, though, is that all three men’s juries will feel pressured to reach a certain verdict rather than another. To that end, we commend the Bulger prosecution for its methodical presentation and its readiness to provide to the defense such evidence as our law requires it to disclose. We shall see if the Tsarnaev prosecution meets this standard.


< Bristol County District Attorney Sam Sutter, who will prosecute the Aaron Hernandez case.

Stay tuned.

— Michael Freedberg / Here and Sphere




No fewer than four murder trials now have the American public – indeed, much of the world, fascinated and attentive,. Of those four trials, three are underway or in preparation in Massachusetts alone. (The fourth one, that of George Zimmerman, is a Florida event.) That Massachusetts be the focus of murder crime may surprise many. Our state’s reputation is that of a progressive, educated citizenry who follow highly moral missions and do their duty to everyone. And our reputation is not a mis-impression. We are all that. Educated, highly moral, committed to the well being of all of our neighbors.

Still, in a society as populous and diverse as Massachusetts, there are many, many agendas going on. Not everyone in Massachusetts works the community’s mission. Our three accused murderers, James “Whitey” Bulger, Dzhokhar Tsarnaev, and Aaron Hernandez had their own agendas even as they lived among the rest of us.

Bulger 1Aaron 1Dzhokhar

Nothing in itself is wrong with that. No society would be worth belonging if it were not open to opt-outs. No society gets it entirely right. Still, it takes an act of will for someone to separate frrom the general opinion. Many acts of will are beneficial : inventors, entrepreneurs, political opponents all go against the societal grain to society’s ultimate betterment.

But some dissents are criminal. By “criminal,” I mean acts that society cannot tolerate, that not only dissent from the society’s mission but portend immediate, actual harm to it and to those who live in it. This, of course, is a commonplace. What is not so commonplace is our fascination with criminal dissent. Why does the criminal do it ? Does he realize that he is acting criminally ? Does it just happen somehow  ? Does he like his criminal self ?

These questions motivate our fascination with the crime events now on trial in Massachusetts or soon to be.

We marvel at their diversity as well as their intensity. There is the old line, noir-movie, city gangster, Whitey Bulger. There’s the terrorist, Dzhokhar Tsarnaev, religious and ioung. And there is the sports star gang-banger, Aaron Hernandez. None has the slightest similarity to any of the others; not motive, not background, not the manner of act. They are linked only by being accused of committing murder — in Massachusetts.

Each probably despises the others. Criminal will is often like that. It defends its own will in the same breath that it condemns other wills. The criminal HAS IT BOTH WAYS. He (or she) breaks the social covenant, but also passionately defends it against others who break it. The criminal gets to be a good citizen and a bad one, both.

This fascinates us, and it should. The cliche “having your cake and eating it too” is a commonplace because we all want to do it – but few of us ever do. The criminal gets to actually do it. How can he NOT fascinate us ?

We wonder how the criminal gets to be so free from taboos even while maintaining a  dedicationl to them. At the trial we see some of how he (or she)  did what he did, and of why, but even at trial the question of how did it get to that is rarely answered even partially. Still, that is the question we want – need – to have answered. Because it is rarely answered in a trial, we follow the trial intently seeking in what is testified to an answer to that question.

We fear, and rightly, that the criminal acts as he does because he likes being criminal. He can condemn the criminal acts of others as vigorously as we do and commit other such acts as we do not. He likes having it both ways ? Maybe not. But what if he does ?

Why did Whitey Bulger choose a life of extortion, gambling, violence, ratting, and killing ? Perhaps because he liked it. Perhaps Tsarnaev liked being his older brother’s loyal helpmate. Maybe Aaron Hernandez liked the power and  swagger, the anger and dominance, that violence to his associates engendered. There is nothing freer than to be free of societal taboos. When one sees that one can do anything, it is hard to walk away. Hard for some, anyway. Fortunately, it is not hard for most of us to eschew doing whatever we want. In any case, we can watch the trials of Hernandez, Tsarnaev, and Bulger and imagine ourselves having it both ways : doing what they did and not doing it. Living it and condemning it.

No wonder that criminal trials fascinate us.



— Michael Freedberg / Here and Sphere