Alex Beam

Defending ‘Whitey’

Can Bulger mount a stunning defense and beat the rap like O.J. Simpson did?

By Alex Beam
Globe Columnist / July 1, 2011

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Back in 1994, I bumped into Harvard Law School professor Alan Dershowitz at a party. O.J. Simpson was in the news; the former football star had been arrested for the murder of his ex-wife and a friend. There was no doubt about whodunit; the media helpfully explained that Simpson butchered the victims, disposed of the incriminating evidence, and calmly drove to the airport.

Evidence abounded: traces of blood, a nearly unique shoe print, and of course the famous glove. Dershowitz had litigated his clients out of equally tight spots and warned me not to rush to judgment. Wait and see, he counseled. Wait and see.

We saw. Dershowitz was part of the defense team that won a stunning courtroom victory over Los Angeles prosecutors in what looked like an open-and-shut murder case. Can it happen here? Can “Whitey’’ Bulger beat the rap? Let’s ask the experts.

Right off the bat, Robert Peabody, a former state and federal prosecutor, rejects the comparison between the O.J. and Whitey cases. “The Simpson case was in the contours of one evening,’’ he said. “The Whitey Bulger indictments concern events spread over 25 years. Federal prosecutors have the luxury of taking time to accumulate a mountain of evidence, and in Whitey’s absence, they have.’’

I was curious what affirmative defenses might be available to Whitey, a fancy way of saying could he offer up any excuses for his activities? Self-defense? Defense of others? Not likely, commented former Massachusetts Bar Association president Edward Ryan Jr., also a criminal defense expert. Ryan recalls that Watergate burglar James McCord Jr. offered a creative “defense of property’’ argument while on trial for the 1972 Watergate break-in, asserting that by surreptitiously entering the Democratic National Committee offices, McCord was in fact defending the United States on behalf of the Central Intelligence Agency.

That didn’t work. “Duress and coercion’’ are two other affirmative defenses. “Those won’t fly in the case of homicide,’’ Ryan said. Equally unlikely, in my view, is an insanity defense. Whitey seems to be hitting on most of his cylinders. Whitey’s lawyers might also assert an immunity defense. As an FBI informant, he could plead “that he had government authorization to commit crimes to further their interests,’’ according to Ryan.

There are an ocean of “bad facts’’ and tainted evidence buttressing the government’s case. “There is that taint of the FBI,’’ said Randy Chapman, former president of the Massachusetts Association of Criminal Defense Lawyers. Following a famous set of hearings in 1998, federal judge Mark Wolf, who is now hearing the Bulger case, lambasted the Bureau for its inappropriate use of informants such as Whitey.

“The quality of evidence that was collected at the time is potentially an important issue,’’ Chapman said, “although that alone isn’t enough to mount a defense. There are so many moving parts in this case.’’

“You could juxtapose the testimony of the State Police against the FBI, and then who are we going to believe?’’ Ryan commented. “The State Police saying he wasn’t really providing useful information, or the FBI, whose star agent John Connolly was using Bulger for personal gain?’’

“Is the government case backed up by choirboys and angels? Of course not,’’ Ryan said. “They will have to rely on the worst sort of criminals as the mainstay of their case.’’ Any good lawyer will assail their character and their credibility. “Of course attacks on snitches haven’t worked that well lately.’’ Ryan added. “That didn’t work for John Connolly, it didn’t work for John Gotti, and it didn’t work for Sal DiMasi either.’’

“The standard defense is to exclude, suppress, and exclude and suppress,’’ said Peabody. “As a defense attorney, you want to winnow the case down to the smallest particle of evidence left.’’

Should Whitey plea out or stand trial? Same difference, said Chapman, who doesn’t expect a trial for at least two years, and can’t imagine Whitey cutting a deal that could keep him out of prison. “The plea would probably be for the rest of his life,’’ Chapman noted. “It’s not going to get any worse. What would happen if everything went wrong? He’d still spend the rest of his life in jail.’’

Could Whitey beat the rap? Long odds, these lawyers thought. “It’s hard to get acquitted on as many counts as he is facing,’’ Peabody said. “They’re going to hook him on one.’’

Or not. Remember O.J. Stranger things have happened.

Alex Beam is a Globe columnist. His e-dress is