Whitey Bulger Trial: A Boston Criminal Defense Attorney’s Thoughts Before Closing Arguments

In the past month, I’ve been asked by some Boston-area news media to provide analysis and commentary on the Whitey Bulger trial. Now that the defense has rested and before closing arguments are offered this coming Monday (August 5 2013,) I wanted to offer some pre-closing observations of the trial:

1) I don’t understand (and haven’t understood, during this whole trial) the defense’s strategy. It has essentially been to parade a series of witnesses to the stand, but not to deny that Bulger has committed most of the crimes with he is charged. Instead,it has seemed to me that the objective has been to essentially conflate and confuse Bulger’s guilt with the actions of corrupt FBI agents in the 1970’s and 1980’s. The defense’s whole message to the jury, translated, seems to have been: “Our client is bad, but the FBI was even worse.” (in enabling Bulger and co-opting him.) Not, in my view as a Boston criminal defense attorney, the best defense that could have been crafted. Quite obviously, Bugler is not in any way an easy client to defend. I’m not saying that the defense here had a lot of options to work with.

But, in retrospect, there was one defense that in the opinion of more than one reputable Massachusetts criminal defense lawyer, would have stood at least a more plausible chance of success. Not guaranteed by any means, but at least “plausible”, which would have been: Bulger was first sentenced to prison in the 1950’s for a variety of violent crimes. While in prison at that time in Atlanta, he volunteered to be given LSD by the CIA, which was trying to determine if the drug would be useful in interrogation and intelligence gathering activities. I believe that Bulger’s lawyers could have plausibly mounted an insanity defense, arguing that his brain and mind were so damaged as a result of LSD experiments, that he could not legally appreciate the wrongfulness of his conduct surrounding the crimes with which he is charged. Remember that – legally – if reasonable doubt could be raised as to Bulger’s mental state during the period of time over which he committed these crimes – it might be possible for the jury to find that he suffered from what is legally known as “diminished mental capacity.” Not by any means a legal “slam-dunk,” but such a defense strategy would have posed, in my professional opinion as a Boston criminal defense lawyer, a slightly higher chance of success over what I have heard so far in this trial. Again, that defense has seemed to be “Whitey Bulger may be a bad seed, but the FBI was just as bad or even worse to work with him as they did.”

2) Bulger would love to testify, given his ego, but was probably talked out of it by his attorneys – notwithstanding his claim in court yesterday that the decision was ‘all his.’ There are very good reasons why he should not have taken the stand: a) Doing so would not stop him from being convicted. The evidence against him is just too massive. He’s going to die in jail, period (thankfully.) b) He was prevented by federal judge Denise Casper from testifying at all about his central – and unsupported- claim,: That the late Jeremiah O’Sullivan, a former federal prosecutor in Boston who was head of the New England Organized Crime Strike Force, gave him immunity in exchange for his providing information to the FBI on other crime rings. C) Most importantly, he would have exposed himself to cross-examination by the prosecution – withering cross-examination that would have laid bare his crimes and stripped him of any further ability to claim his innocence on any level. From a Massachusetts criminal defense attorney’s perspective, it is almost universally unwise and inadvisable to put your client on the witness stand. The downside that would result from exposure to cross-examination by the prosecution, is just too high.

Whagt did he say when asked by US District Judge Denise Casper if his decision to testify was made freely and voluntarily?: “As far as I’m concerned, I didn’t get a fair trial, and this is a sham.” Do what yous want with me. That’s my final word.”

Universally acknowledged as a twisted sociopath, Bulger remains theatrical and deceptive, even at age 83: He has asked that the $822,000.00 in cash recovered at his California apartment when he was finally arrested, be donated to the families of murder victims killed during his reign (which, of course, he denies any involvement in.) Perhaps one last public attempt to frame himself as a modern day ‘Robin Hood’ – robbing from the rich to benefit the poor.

I for one will be glad when this trial is over, justice is done, and this monster is locked away until he is one day carried out in a body bag. Though I doubt his grave will be a shallow dirt one of the kind most of his victims ended up in.

In the event that you’re surprised that a Boston criminal lawyer would say this, don’t be: I’m a lawyer. I want justice here, too.