Whitey Bulger’s Criminal Defense on the Taxpayers’ Dime – My Two Cents

During the past week as both a TV commentator and a practicing criminal defense attorney, I have been asked what right James "Whitey" Bulger has to obtain a tax-payer funded attorney to represent him in the case now titled United States v. James J. Bulger, No. 99-cr-10371. Indeed, a number of folks I have spoken with, or heard from via their own public commentary, seem outraged by the possibility. Like it or not, the fact is Whitey Bulger, who as a matter of law is presumed innocent at this time of all the charges and allegations pending against him, including those pertaining to nineteen (19) alleged murders, is entitled to representation by qualified counsel, and if he cannot afford one, one shall be appointed for him at the public’s expense. This is not a question of policy. It has been a fundamental Constitutional right ever since the United States Supreme Court’s decision regarding the same in Gideon v. Wainwright, 372 U.S. 335 (1963) nearly fifty years ago. In the federal system, the underlying process regarding appointment of counsel is governed by the rules and procedures set forth in the Criminal Justice Act - 18 U.S.C § 3006A et. seq. - where it states that the determination of eligibility for representation by public counsel is a judicial function to be determined by the Court or U.S. Magistrate Judge "after making appropriate inquiries concerning the person’s financial condition." See Guide to Judiciary Policy, Ch. 7 § 210.40.20(a). In most instances, this is done via a financial affidavit filed by the defendant under the pain and penalty of perjury. The determination is simple: "A person is financially 'unable to obtain counsel’ within the meaning of subsection 18 U.S.C. § 3006A(b) of the Act if the person’s net financial resources and income are insufficient to obtain qualified counsel." See Id. at § 210.40.30(a). To be sure, the government has the right to challenge any claim of indigence made by the defendant, as they did here, but the reality is unless they can establish that the defendant has filed a false affidavit or has hidden available assets that can be used for the same purpose, the Court has no choice but to rely on the defendant’s affidavit in deciding the question in view of the fact that "any doubts as to the person’s eligibility should be resolved in the person’s favor…" See Id. at § 210.40.30(b). Here, the fact that the Feds allegedly seized some $800,000 from the defendant’s purported California hideaway and suspect him of having assets elsewhere is not only insufficient to overcome the basic presumption, but also compounds the entire situation by creating a Catch 22 whereby they appeared to be insisting that he retain counsel with funds they had already taken, with no intention of returning to him; or with other funds the existence of which they are unable to prove. And while they certainly have the right to suggest that Whitey Bulger’s family members have the ability to assist in paying for his defense, the family of the accused has no obligation whatsoever to assist in anyway in paying for a sibling or adult child’s defense (absent evidence of joint financial assets and/or joint bank accounts) because ,"[T]he initial determination of eligibility should be made without regard to the financial ability of the person’s family, unless the family indicates willingness and financial ability to retain counsel promptly." See Id. at § 210.40.50 [emphasis added]. So in the end, by appointing J.W. Carney, Esq. to represent Mr. Bulger at the taxpayers’ expense, the Honorable Marianne Bowler did exactly as she is authorized to do, and Constitutionally required to do, given the facts with which she was presented. While casual observers may not accept this, it is the law and, besides, at $125/hr. it’s going to take an awful lot of hours for public counsel to off-set the total of the more than $800,000 cash the government has already seized without a hearing, and has every intention of hanging onto.