Globe Editorial

Bulger deserves public counsel — and won’t profit from it

June 28, 2011

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WITHOUT ACCESS to the $800,000 that federal law enforcement officials seized from his Santa Monica apartment, James “Whitey’’ Bulger claims he is broke and in need of court-appointed counsel. On this issue, the law is on Bulger’s side. In the 1963 landmark case of Gideon v. Wainwright, the US Supreme Court ruled that a right to counsel in a criminal case is guaranteed by the US Constitution and that any doubt about a defendant’s eligibility should be resolved in the defendant’s favor. The unanimous court determined that, in the words of Justice Hugo L. Black, lawyers in criminal cases “are necessities, not luxuries.’’

Once a defendant is declared indigent, the first call for counsel in a federal case usually goes to the Federal Public Defender Office. However, since lawyers from that office previously represented Steven Flemmi, one of Bulger’s co-defendants, that would create a conflict. So, the next step would be to look to a separate list of private lawyers who have been reviewed and accepted to represent indigent criminal defendants.

Peter B. Krupp, who represented Bulger in his initial court appearance, is well-qualified for the job. He heads the Criminal Justice Act Board in Massachusetts, which provides private lawyers who serve as public defenders to indigent defendants in the federal courts. Over the years, he has demonstrated great commitment to the delivery of high-quality legal services to indigent criminal defendants. He served on a committee formed by the US Court of Appeals for the First Circuit to study and improve the process of appointing counsel. For a number of years, he also helped screen applications from attorneys wishing to take indigent criminal defense appointments on appeal.

The federal government took Bulger’s money on the theory that he got it through a life of crime. Without that money, Bulger needs a court-appointed lawyer. There is really no other option, as distasteful as the idea of public resources going to Bulger’s defense may be to many people. The strictures of the American legal system, based on a confrontation between prosecution and defense, require that even the most notorious criminals receive proper representation. Court-appointed counsel can be revoked if it turns out that he misrepresented his situation and has the resources to pay for a private lawyer. And if it turns out that Bulger has more criminal loot hidden around the country — a real possibility — then it will be duly confiscated. There is no way Bulger will profit from receiving court-appointed representation.

Public opinion about Bulger’s role in Boston’s gangland past should not get in the way of bedrock principle regarding a defendant’s right to counsel. When it comes to legal representation, Bulger should get whatever any indigent criminal defendant would get — nothing more, nothing less.