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Why Whitey Bulger Deserves A Vigorous Defense And A Fair Trial

This article is more than 6 years old.

True Crime meets Reality TV. James “Whitey” Bulger is right about one thing. It is a Big Show that opens this week at the John Joseph Moakley Courthouse on Boston’s waterfront. All that’s missing is a toll-free number to rank the performance of the molls and mobsters expected to testify at his much-anticipated federal racketeering trial.

In this circus atmosphere, to everyone but the universally reviled defendant and the sure-to-be-closely-scrutinized judge, that pesky constitutional guarantee of a fair trial feels like a tiresome intrusion on the more compelling theatrical narrative about the 83-year-old Irish mob boss, the stone-cold killer who conspired with corrupt federal agents, the wily criminal who evaded capture for 16 years along Santa Monica’s shoreline even as his victims were unearthed along Dorchester’s Tenean Beach.

The more notorious the criminal case, the more tempting it is to disparage the legal protections afforded defendants, making these the very cases in which those protections matter most.

Can the legal presumption of innocence really compete with our confidence that we already know the inside story of the octogenarian son of Southie now in chains and leg irons? We’ve seen “The Departed.” We’ve read “Whitey: The Life of America’s Most Notorious Mob Boss” by Dick Lehr and Gerard O’Neil. We’ve read “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt that Brought Him to Justice’’ by Kevin Cullen and Shelley Murphy. We know — because the media keep telling us — that this trial is about getting justice for Whitey’s victims. Everything else is defense obfuscation.

“They’re trying to paint the defendant in a certain way, but the toothpaste is out of the tube,” William Kickham said of defense efforts to portray Bulger as anything but a monster. “Any sentient being has already heard of Whitey Bulger and his reputation. And if they aren’t quite convinced of it yet, that would be a rarity,” he told The Herald. And Kickham is a defense lawyer.

Anthony Cardinale is more sympathetic to the defense team, having made a career of representing accused mobsters himself, but he, too, sees only strategy in the efforts of J.W. Carney Jr. and Hank Brennan. “Considering the nature of the client they’re dealing with, the monster that he is, it’s very important to change the perception,” Cardinale told The Herald.

The more notorious the criminal case, the more tempting it is to disparage the legal protections afforded defendants, making these the very cases in which those protections matter most. Criminal trials are purely spectator events only to those who can never imagine themselves in the well of courtroom. A defense attorney is an apologist for criminals only until you need one.

Whatever the culpability of Bulger for the multitude of horrific crimes with which he stands accused, we are all beneficiaries of his access to a vigorous defense. This spring saw the release of “The Central Park Five,” the PBS documentary by Sarah and Ken Burns about the wrongful conviction of five teenagers in New York for the rape of a jogger in Central Park in 1989. We knew with confidence what happened to that jogger at the hands of those “wilding” teenagers until it turned out that we didn’t.

Whatever the culpability of Bulger for the multitude of horrific crimes with which he stands accused, we are all beneficiaries of his access to a vigorous defense.

Dick Lehr, whose reporting with the Globe’s Spotlight Team helped expose the collusion between Bulger and the FBI, also exposed the wrongful conviction of Shawn Drumgold, who served 14 years of a life sentence for the high profile 1988 shooting death of 12-year-old Darlene Tiffany Moore in Roxbury.

Sometimes, the state gets it wrong. Or is guilty of wrongdoing itself. Maybe Bulger did strangle Debra Davis, but some of the testimony incriminating him is likely to come from Stephen “The Rifleman” Flemmi, a Bulger associate and convicted killer who had at least as much reason to kill Davis, his estranged girlfriend. Maybe it is inconceivable that the FBI gave Bulger a license to kill, but who would have believed that a federal agent would be the one to tip him off to a pending indictment, sending him on the run all those years ago?

Yesterday, defense attorneys asked U.S. District Court Judge Denise J. Casper Judge to reserve seats in the courtroom for the general public during jury selection to ensure an open proceeding. She should do more. She should follow the advice of Harvard Law Professor Charles Nesson and Fern Nesson, an appellate attorney, and live stream the trial on the Internet “to allow the public to see and assess the quality of justice done in our name.”

A Big Show demands a big audience, an audience that might find it hard to appreciate the value of a vigorous defense until it sees one.


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This program aired on June 4, 2013. The audio for this program is not available.

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