WBUR: ‘Label Them As Rats’: Expected Strategy In The Bulger Trial

By Sacha Pfeiffer and Lynn Jolicoeur June 7, 2013

BOSTON - The judge in the James "Whitey" Bulger trial expects a jury to be seated by early next week and opening statements to happen Wednesday - with several months of testimony to follow.

To get a sense of the likely legal strategy by both sides in the case, All Things Considered's Sacha Pfeiffer spoke with Brad Bailey, a Boston criminal defense attorney and former state and federal prosecutor.

Sacha Pfeiffer: What would the ideal juror look like to prosecutors, and how would that differ from the ideal juror in the eyes of Bulger's lawyers?

Brad Bailey: I think it differs a lot. I think the government wants law-and-order types. I think the government wants people with very focused attention spans, people that are probably educated, people who do have the ability to sift through weeks and weeks and weeks and months of testimony and not get overwhelmed and not lose sight of the forest for the trees.

On the other hand, I think the defense would like that proverbial anti-government skeptic-cynic who sees a government conspiracy behind every case that's brought, and they're going to try to seat as many of those type of jurors as they can find and as they can slip through the vetting process.

Bulger is charged with 32 crimes, including 19 murders, and the indictment against him is for racketeering. For people unfamiliar with exactly what racketeering means, could you give us a simple legal definition?

A simple definition is that the government alleges that the individuals charged with racketeering offenses are part of a criminal enterprise. And the advantage of racketeering, among many things, is the statute of limitation doesn't apply for most of the crimes. As long as a limited number are inside the statute, you can go back as far as you want and you can bring as many people in, and there's a huge advantage.

Bulger's lawyers have been told by the judge that they cannot present his immunity claim - his claim that federal law enforcement officials told him he could commit crimes, including future crimes, because was an informant. That claim was central to his defense. Without it, what kind of legal strategy are his defense lawyers left with?

Well, I'm not so sure that they're necessarily going to give up on that particular issue even though now two judges, but certainly the trial judge whose opinion controls, have ruled it out of the case. And I think you'll constantly see them trying to lay at least a foundation in order for them to have the judge revisit it and maybe reconsider it. They also may just try to slip it in there, and if Mr. Bulger does in fact testify, you never know what's going to come out of his mouth anyway.

But, taking that aside, I think what they're going to do is, No. 1, they're going to focus on the principal government witnesses. They are going to attack them as cooperators, they're going to label them as rats, they're going to call into question their testimony.

Criminal types that shouldn't be believed on the stand?

That they shouldn't be believed because they're only doing this for their own deals. Their deals are going to be dissected. You're going to hear a lot about John Martorano having admitted to 20 murders and only getting a sentence of 12 years. You're going to hear a lot about Steve Flemmi having admitted to 10 murders and avoiding the death penalty. You're going to hear about the Kevin Weeks deals. You're doing to hear this all throughout: that these folks, according to the defense, have sung for their supper, they've sold their souls, [that] "Whitey" is the last man standing and, of course, they're blaming all of their acts and all of their so-called sins on him.

On top of that, you're going to see the defense going after what appears to sort of be this inconsistent approach to some of these witnesses that the government appears to have taken.

In what sense?

Well, if you take somebody like Steve Flemmi, with all these civil suits filed by purported victims' families against Mr. Bulger-

-who want to be compensated financially for the murders of loved ones.

Yes, who want to be compensated. The Department of Justice attacked the integrity of folks like Flemmi and Weeks in order to try to avoid the civil damages that the plaintiffs, the deceased's families, were seeking.

But the government is now putting them on the stand.

Right, now the government is putting them on the stand and saying you should believe them, they're credible, and of course we're not going to be putting 17 bishops in that witness box; we're going to be putting people who are criminal associates of "Whitey."

When the jury finally comes back with a verdict, what would each side consider success in this case?

Well, I think in this case the government would think nothing short of guilty verdicts across the board would be success.

On the other hand, it would only take a verdict or two to essentially put "Whitey" Bulger away for life, given his age.

Yeah, that's true. But I think they still will want it across the board. It will be their ultimate vindication. They've put together a massive case and a major indictment.

In terms of the defense side, if they could persuade one juror - one juror - to hold out with a not guilty, I'm sure that that will be a victory for them.

But, interestingly enough, in terms of Mr. Bulger himself, what keeps coming out through all the prologue to this trial is that he wants to make it clear that he did not kill the two women who he's accused of killing among those 19 murders and that he was not a government informant. And so one could suggest if somehow he feels that he's convinced a jury of that, that to him will be a victory and enough of a victory.