After the Racket: Bulger Jury Speaks Loudly

Make no mistake about it. The verdicts returned by the jury in the Whitey Bulger racketeering trial (United States v. Bulger, et al., No. 99-CR-10371), nearly eight weeks to the day from jury selection, represent a sweeping victory for the prosecution; guilty on thirty-one of thirty-two counts including RICO conspiracy and RICO substantive charges; eleven of nineteen murders proven beyond a reasonable doubt; twenty-five of thirty-three racketeering acts proven beyond a reasonable doubt. Yes, the jury also unanimously concluded that seven of the alleged murders had not been proven. They also failed to reach a verdict on an eighth (Debra Davis). In addition, they found that two of six racketeering acts alleging extortion had not been proven either. Some of the affected families of victims of those crimes expressed displeasure and frustration over those particular findings after the verdicts were returned. But in short, while the Feds may not have run the table in terms of guilty verdicts yesterday, they sure as heck came pretty close!

While I obviously wasn't on the jury and can only speculate about the deliberations, my own informal analysis of these individual "not proven"/"no finding" verdicts suggests several possibilities. First, the jury may have been confused about instructions provided by Judge Denise Casper on the theory of joint venture liability regarding those alleged act(s) in which the evidence suggested Bulger may have been more than merely present when a murder was committed, but not the actual triggerman. Second, it may be that on some of the earlier acts alleging murder the jury was confused or conflicted about whether or not acts allegedly committed on behalf of a criminal enterprise not charged in the indictment (e.g., the Patriarca/Angiulo Crime Family) were sufficiently proven to have been committed in furtherance of the criminal enterprises actually charged in the case (Bulger/Winter Hill Gang). Third, it's possible that these particular not proven verdicts reflected the jury's contempt for, or suspicion/doubt about, uncorroborated testimony by either Steve Flemmi or John Martorano as pertaining to the individual acts considered; and it may have been a way for the jury to simultaneously signal their distaste for some of the plea deals underlying the case, or the jury's revulsion over the conduct of some of Bulger's purported FBI handlers, at least in a limited manner that ultimately did little to undermine their clear intention of holding Bulger culpable for more than thirty years of violent criminal activity. Which is exactly what the jury did, in the final analysis.

By holding Whitey accountable for a pattern of criminal activity that included multiple murders, extortion, drug dealing, money laundering and weapons possession, the jury validated years of dogged determination and dedication by federal prosecutors Fred Wyshak and Brian Kelly to bring Bulger to justice; decades of swimming upstream and battling against the current (of FBI stonewalling and corruption) by relentless law enforcement investigators like retired State Police Colonel Thomas Foley, DEA Special Agent Dan Doherty and State Police Lieutenant Steven Johnson, to name a few; and even the hard-nosed efforts by a number of zealous defense attorneys who vigorously pushed for bombshell discoveries regarding Bulger's and Flemmi's top-echelon informant status during lengthy but clear-sighted and spot-on evidentiary hearings conducted by former Chief Federal Judge Mark Wolf as far back as the mid-1990s. As a result of all of this, Bulger, who now faces up to life in prison as a result of any one of the eleven proven murder charges alone, will assuredly spend the rest of his natural life in prison in a maximum security facility, if not/very possibly in a "Super Max" facility given the violent nature of the crimes on which he was convicted and the life sentence he will likely receive. Whether or not he will be able to trade concurrent life sentences in both Oklahoma and Florida for the murders of Roger Wheeler and John Callahan (specific racketeering acts the jury has concluded the Feds had proved beyond a reasonable doubt) for avoiding possible death penalty sentences in each of the two respective states, is yet to be determined.

While his lawyer vowed to appeal Judge Casper's decision denying him the ability to present an immunity defense, the likelihood of any such appeal's success remains slim given not only that two separate District Court judges reached the same conclusion before trial — that no such defense exists for prospective murders and no proof of an unrestricted immunity grant (and/or "license to kill") was provided, but also because Bulger himself may have eliminated any viable claim of immunity by opting not to testify and/or even attempting to lay a foundation on which to request that Judge Casper reconsider the same. Moreover, it's possible the only way authorities in Oklahoma and Florida will even consider life in prison in exchange for dropping the death penalty will be if Bulger first agrees to waive and forego any federal appeal.

From start to finish, the defense's strategy seemed singularly focused on establishing that Whitey Bulger was not an FBI informant and didn't kill women. So repetitive were these themes that it became clear that validation in that limited regard was really all Bulger was ever seeking from this jury. With a clear and unambiguous verdict of "proven" on the Deborah Hussey murder and absolutely nothing to suggest the jury disbelieved any of the government's evidence about Bulger's informant status (which essentially had no bearing on the verdicts, anyway), the only Bulger legacy we are left with as result of these sweeping verdicts is that of convicted murderer, drug dealer, extortionist, and racketeer.

By contrast, the legacy left by the Bulger jury itself is one of diligence, conscientiousness, loyalty (to their oaths), and discernment. Yes, a few of their verdicts are disappointing to the families directly affected, and yes it took the balance of five days for them to reach consensus, but in the final analysis the Bulger jury showed all of us, in the face of evidence that some described as overwhelming or a "slam dunk", they would not be hurried. They would not be pushed. They would be deliberate. They would be thorough. They are courageous. And that they wanted to get it right.

Not having been in that jury room and not being privy to both their collective and individual deliberations, it's not my place to opine whether they did, or did not, get everything right at the end of the day. What I can say is it's clear they did their job, and did it well. For that, we can all be grateful.