LEGAL VIEW: The Whitey Bulger case and the right to be heard

By Allison D. Burroughs, Dahlia Rin and Benjamin L. Mack The Daily Record Newswire Following the dramatic arrest of James "Whitey" Bulger last June, federal prosecutors in Boston indicted his longtime girlfriend, Catherine Greig, on one count of conspiracy to harbor a fugitive. (Federal prosecutors have indicated that they plan to seek a superseding indictment with additional charges against Greig, but they have not indicated what those new charges will be.) Thanks to robust statutory protections, Bulger's alleged crime victims (or the family members of the deceased victims) have the right to speak in court at any of his release, plea, sentencing or parole proceedings. Bulger, however, elected not to challenge his pre-trial detention, and, therefore, there was no pre-trial release hearing and no immediate opportunity for the alleged victims or their families to speak in court. Perhaps not surprisingly, the alleged victims, anxious for an opportunity to have their voices heard, sought instead to speak at Greig's detention hearing. The magistrate judge's decision to allow four family members of Bulger's deceased victims to speak against Greig's release was no doubt meant to be a kindness to the family members. However, the decision, made without limitation as to relevance or materiality, may well have run afoul of applicable statutes. Moreover, the additional pre-trial publicity could have consequences that the testifying family members neither intended nor desired. Following a two-day hearing that included emotionally wrenching victim testimony, the magistrate judge denied Greig's motion for pre-trial release, finding that she "poses a serious risk of flight" and that "no condition or combination of conditions will reasonably assure the appearance of the defendant as required." Greig's attorney has moved to revoke the detention order, a motion the government has opposed. In the meantime, Greig remains in custody pending her trial, which is currently scheduled to begin on May 7. The Crime Victims' Rights Act of 2004 (CVRA), 18 U.S.C. §3771, affords crime victims substantial rights and protections, including, among other things, a right to "reasonable, accurate, and timely notice of any public court proceeding"; a right "not to be excluded from any such public court proceeding" (with certain exceptions); a right to be "reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding"; and a right to be "treated with fairness and with respect for the victim's dignity and privacy." Who may assert such rights? The CVRA provides that "[t]he crime victim or the crime victim's lawful representative, and the attorney for the Government may assert" the above-described rights of crime victims. Also, "[i]n the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim's rights under this chapter ... ." It was ostensibly under those provisions that the magistrate judge permitted family members of Bulger's deceased alleged victims to speak at Greig's pre-trial release hearing. But a question remains: Were Bulger's alleged murder victims, or the family members who spoke for them, victims of Greig's alleged crime of conspiracy to harbor a fugitive within the meaning of the CVRA? Federal case law applying the statute suggests that Bulger and Greig's respective victims are not one and the same and, thus, that victims of Bulger's alleged offenses should not necessarily have been allowed to testify at Grieg's detention hearing. Who is a crime victim? Under the CVRA, a "crime victim" is defined as "a person directly and proximately harmed as a result of the commission of a Federal offense." In certain situations, as described above, legal guardians, estate representatives and family members may assume a crime victim's rights under the CVRA. Although the statutory definition could be read expansively, federal courts have limited who qualifies as a victim. For example, in In re Antrobus, 519 F.3d 1123 (10th Cir. 2008), the defendant pleaded guilty to the illegal sale of a handgun to a juvenile. Several months after the sale, the handgun buyer went on a fatal shooting spree at a shopping center. The parents of one of the victims moved to have their deceased daughter recognized as a victim of the illegal handgun sale so that they would have a right to speak at the handgun seller's sentencing hearing. The 10th Circuit affirmed the District Court's holding that the illegal handgun sale was not a direct and proximate cause of the later murder because the two events were "too factually and temporally attenuated," and the daughter was therefore not a "victim" of the illegal handgun sale under the CVRA. In United States v. Atlantic States Cast Iron Pipe Company, 612 F. Supp. 2d 453 (D. N.J. 2009), a jury convicted a company and four employees of multiple counts including obstruction of Occupational Safety and Health Administration proceedings after incidents in which six other employees sustained serious or fatal injuries at work. Federal prosecutors moved to have the six injured employees recognized as victims under the CVRA so they could speak at the defendants' sentencing hearing. The court denied that motion, concluding that because the OSHA-related convictions were all based on the deception of OSHA, the six injured workers were not "crime victims" under the CVRA; rather, the only victim was OSHA itself. The court explained that the harm to the six injured employees was "too factually attenuated, in relation to the offenses of conviction," to find crime victim status. The U.S. Department of Justice recently issued new guidelines (AG Guidelines) that shed further light on who qualifies as a "crime victim" under the CVRA. The guidelines adopt the above-quoted statutory definition of "crime victim" requiring "direct and proximate harm," and further explain: "To qualify as a victim, both statutes require the alleged harm must be a direct consequence of the crime; that is, the harm must generally be a 'but for' consequence of the conduct that constitutes the crime, specifically the crime under investigation ... . "The CVRA requires an additional showing that the alleged harm must have been proximately caused by the offense. That showing ordinarily requires that the alleged harm must have been a reasonably foreseeable result of the charged offense." Applying definition to Greig's alleged crime Given the CVRA definition of "crime victim," the way in which some federal courts have construed that definition and the new AG Guidelines, a fair analysis suggests that the four family members of Bulger's alleged murder victims who spoke at Greig's pre-trial release hearing were not "victims" of Greig's alleged crime of conspiracy to harbor a fugitive. The alleged murder victims were killed between 1975 and 1984. Greig's alleged conspiracy to harbor Bulger is charged as having begun in or around January 1995, when Bulger allegedly fled from Massachusetts in anticipation of being indicted by a federal grand jury sitting in Boston. Thus, even the most recent of the alleged murders occurred more than a decade before the start of Greig's alleged conspiracy, making it difficult to conclude that her conduct directly and proximately harmed the already long-deceased victims. Furthermore, the crime of harboring is different in kind from many other federal crimes that have obvious private victims, such as murder, arson or bank robbery. Unlike those crimes, harboring a fugitive is not generally associated with harm to an individual victim. Scope of victim testimony The CVRA does not, on its face, limit the scope of subjects on which a crime victim may be heard. However, under the Bail Reform Act of 1984, 18 U.S.C. §§3141-3156, the purpose of a pre-trial release hearing is for the court to determine whether any "condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." Only evidence relevant to those issues is generally permitted at such hearings. Therefore, though not addressed in the CVRA, the testimony of victims at a release hearing should probably be limited to evidence bearing on risk of flight and danger to the community. In Greig's case, the magistrate judge did not require that the four family members who spoke have any evidence bearing on Greig's risk of flight or danger to the community, nor was their testimony limited to those two topics. Thus, the testimony likely exceeded the scope of evidence relevant to a detention hearing or permitted under federal law. Additionally, introducing highly emotional testimony at a pre-trial release hearing could backfire on federal prosecutors and victims interested in local justice by lending unintended support to a defense motion for change of venue by reason of pre-trial prejudice. It could also raise other potential issues as a result of exposing the jury pool to powerful and disturbing testimony. In a case already fraught with media frenzy, any additional pre-trial publicity that occurs as a result of public victim statements could increase the likelihood of success on a change of venue motion down the road, particularly if the testimony is emotionally charged or inflammatory. In fact, media reports are already quoting Greig's attorney as saying that there are circumstances under which Greig might seek a trial out of state. Conclusion Although prosecutors are legally obligated to ensure that victims are afforded their statutory rights, including the right to be heard at release proceedings, courts and prosecutors also should consider more carefully who actually qualifies as a victim and the scope of allowable testimony. While a purported victim might feel temporarily better as a result of having aired his outrage to a court during a pre-trial release hearing, that person's remarks might well have no legal significance on the outcome of the detention issue, while contributing to a trial being moved out of state because of a compromised jury pool. Ultimately, a trial in a victim's home state might mean more to a grieving relative than the opportunity, warranted by statute or not, to speak at a detention hearing. ---------- Allison D. Burroughs is a partner in the litigation department and a member of the government investigations and white-collar defense practice group at Nutter, McClennen & Fish in Boston. Dahlia Rin and Benjamin L. Mack are associates in the department and practice group. Published: Tue, Jan 3, 2012