Attorneys from both sides of the James “Whitey” Bulger trial agreed to withhold medical records and autopsy reports of alleged victims from the public while presenting arguments to lift a protective order on the case Friday.
One of Bulger’s attorneys, Henry Brennan, said the order established an “unfair playing ground” and the information “should be presumptively open to the public.”
The order, filed last August, limits the defense to discuss government evidence only with necessary counsel or witnesses, unless it is already in the public record, according to the order.
“Much of the information is already in the public realm,” Brennan said of the discovery materials.
It is important for the defense team to be able to consult with friends, family members, community members and paralegals on the case, he said.
Brennan said the government has the same obligation to the protective order as the defense, noting the government’s release of “sensational” information, such as the announcement of possible memoirs, to the media.
To highlight these things is unfair, he said, and sends information to the public “in a way similar to a PR campaign.”
Assistant U.S. Attorney Brian Kelly said more than a dozen cases have been successfully litigated under a protective order, and now is not the time to completely lift it.
“It is in no way an impediment to the case,” Kelly said.
The Boston Globe’s attorney, Jonathan Albano, argued to lift the protective order and said the order goes too far.
The Globe conceded that while certain information, such as medical information, should remain protected, the order completely flips the constitutional presumption of open access to court findings, he said.
The defense originally accepted the prosecution’s demand for a protective order in August.
“It is not uncommon at the outset of the case to agree without prejudice so that you can have immediate access to the material,” Brennan said to press outside the John Joseph Moakley courthouse in Boston.
Brennan said the term “without prejudice” means the defense can argue whether or not the order should exist, “and now is that appropriate time.”
But the defense said the order has put serious limitations on the progression of the case.
U.S. Magistrate Judge Marianne Bowler asked why both sides could not discuss what exactly should be covered by the protective order.
Brennan said he would agree to a modified order in which the prosecution identifies specific information that it does not want released to the public.
“They agreed to this early, and then they want to throw it out,” said Kelly, who resisted the idea of a modified order.
Bowler said she would take the matter under consideration but has agreed that autopsy and medical reports remain protected.
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