What is William Bulger’s obligation? | Harvey A. Silverglate

It’s not a crime to love a sibling

William Bulger was UMass president from 1996 to 2003. William Bulger was UMass president from 1996 to 2003. (File 2002/ The Boston Globe)
By Harvey A. Silverglate
June 29, 2011

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THE PUBLIC outrage and media onslaught about William Bulger’s refusal to betray his brother, James “Whitey’’ Bulger needs to stop. Bill Bulger is criticized because he continues to love his brother, and that he hopes never to have a part in Whitey Bulger’s downfall. And for this he is vilified.

Consider the outrage over Bill Bulger’s refusal to help the authorities locate Whitey Bulger, beyond his legal obligation to testify truthfully when subpoenaed in 2003. Following a lengthy, and ultimately successful, political campaign to oust Bill Bulger from his presidency at UMass, then-governor Mitt Romney stated he was glad that we could get past a “shadow of controversy’’ that was apparently surrounding the institution, despite no implication, by Romney or anyone else, that Bulger had done anything close to illegal. He had simply spoken once by phone with his fugitive sibling. He should not have been driven out on account of familial loyalty.

While the law does not recognize a brother-to-brother privilege — Bill could not, and did not, refuse to testify under subpoena — it likewise does not impose an affirmative obligation on a sibling to voluntarily aid in the capture of a loved one.

Moreover, testimonial privileges are recognized in various state and federal jurisdictions. Husbands and wives, for example, generally may not be forced to testify against each other. Clergymen and penitents enjoy a privilege, as do physicians and patients. We rightly cringe every time a reporter is threatened with jail for refusing to disclose the name of a confidential source, even though federal law, unlike the law in most states, does not recognize a formal privilege.

Siblings, as well as parents and children, do not enjoy legal privileges, but prosecutors often hesitate before coercing blood relatives to testify against loved ones. For example, prosecutors in a 1986 Boston federal grand jury investigation subpoenaed an elderly Italian mother to testify against her son, a Somerville patrolman being investigated in a police-exam cheating scandal. The mother’s request that the court quash the subpoena on familial privilege grounds was, not surprisingly, denied. The mother, nonetheless, refused to testify.

The prosecutor blinked and did not seek to jail her, recognizing perhaps that maternal instinct, combined with old world traditions, rendered that mother impervious to coercion. And jailing her might not have sat well with the public. After all, by not honoring a parent-child testimonial privilege, our federal system differs from Roman law, Jewish law, Catholic canon law, and the laws of many Western European countries.

Such concerns extend as well to Whitey Bulger, against whom ample evidence of a life of depravity and violence has been compiled by reputable reporters, but whose legal rights were widely ridiculed. There was widespread media questioning, even mockery, of Whitey’s courtroom request for an appointed lawyer at public expense. Howls of outrage greeted the plea of indigence by a man who had $800,000 in his apartment when arrested. On closer inspection, though, Bulger’s plea makes perfect sense: every penny he possesses would be subject to some claim by either the government or the families of his many victims. The howls of outrage are, then, cynical and unthinking histrionics.

No matter the defendant or close relative, it remains essential to honor every protection of law. In his play “A Man For All Seasons,’’ about the career and martyrdom of Sir Thomas More, Robert Bolt wrote one of the most moving tributes literature has paid to law. More is urged by a supporter to get the jump on his enemies on any trumped-up ground whatsoever before they can turn on him. More refuses. Analogizing the laws of England to the trees in a forest, More proclaims his refusal to cut down every tree in search of the Devil, for fear that, should the Devil turn on his pursuer, there would be no trees left to protect him. More would “give the Devil benefit of law, for my own safety’s sake.’’

Harvey A. Silverglate, a Boston criminal defense and civil liberties lawyer, is the author, most recently, of “Three Felonies a Day: How the Feds Target the Innocent.’’