An article in today’s Boston Globe discusses Judge Denise Casper’s first significant ruling in the James “Whitey” Bulger case, one that involves assuring the anonymity of a confidential informant. Bulger’s lawyers argued that one of FBI Agent John Gamel’s informants should be identified so that the defense can impeach government witness Kevin Weeks. Weeks previously stated under oath that he, Bulger and two others legitimately won a 1991 Mass Millions prize in excess of fourteen million dollars. The confidential informant who the defense wants to unmask has contradicted this claiming that the lottery money was not legitimately won but rather a money laundering scheme. Reasoning that there is no connection between the crimes charged and the lottery winnings the judge refused to order disclosure of the informant’s identity. She specifically wrote that “Contrary to Bulger’s argument, there is still reason to preserve the CI’s anonymity. The key consideration is not that there is no pending investigation or other law enforcement interest remaining in the underlying matter, but that the qualified privilege presumes confidentiality unless the burden to disclose such information is met … This assurance of anonymity is essential.”
So when if fact does Massachusetts require the informant’s identity to be disclosed? Like most jurisdictions, Massachusetts recognizes the government’s privilege not to disclose the identity of a confidential informant. The Massachusetts Courts endeavor to protect the safety of the informant by maintaining anonymity. The courts also acknowledge that the privilege helps the police in investigating criminal activity. The privilege however is not absolute. The standard for requiring disclosure in one of materiality particularly at the trial stage of the proceedings. Disclosure is often required where it bears on the issue of guilt or innocence. If the confidential informant participated in the crime charged disclosure will be ordered. Also, if the informant was a percipient witness to the crime alleged and is the only civilian witness disclosure will be ordered. In essence, a balancing test is done by the judge to see whether applying the privilege would result in an unfair trial for the defendant.
As a Massachusetts Criminal Lawyer I can certainly see why the defense would want this person’s identity disclosed. Weeks and several other government witnesses in this case cut deals that resulted in reduced jail sentences in exchange for their testimony. Naturally, attacking their credibility is a major consideration to the defense. The lottery matter is not irrelevant in the context of this case. The crimes charged go back more than three decade. They include money laundering, which is precisely what the confidential informant said the lottery winnings were about.
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