Legal Commentary: Whitey Bulger and the More Revealing Trial That Wasn’t

The first round of the Whitey Bulger trial ended today with a guilty verdict on eleven murder charges and a racketeering charge for the mobster who terrorized South Boston for decades in the 1970s to the early 1990s when he fled, tipped off by the FBI.

Here’s what we know about the most interesting, most revealing mob trial in decades, and beyond the jump, what we didn’t get to hear:

Len Levitt on Huffington Post: We know the outlines of the Bulger case: how FBI Director J. Edgar Hoover, having failed for decades to recognize the existence of organized crime, sought in the early 1970s to destroy its Italian part, La Cosa Nostra. Enter FBI agent John Connolly from Southie, Bulger's home turf, and Connolly's organized crime squad supervisor John Morris. The two agents allowed Bulger and his Winter Hill Irish gang to kill not just the Italians but civilians with no connection to organized crime. While Bulger and his associates were allegedly committing 19 murders, Connolly and Morris tipped Bulger to investigations of him by the Boston Police, the Massachusetts State Police and the Drug Enforcement Agency, ultimately allowing him to take it on the lam for the next 16 years until his capture two years ago.  

Meanwhile, the FBI hierarchy went along in lockstep and protected both Bulger and his two FBI handlers. 

A dozen FBI agents -- many of them supervisors, both in Boston and in Washington, were so fearful of short-circuiting their careers by rocking the Bureau boat that they lacked the courage, honesty, moral outrage and common sense to stop both Bulger and the Bureau's betrayal of its law enforcement partners.

Bulger grew up in the same housing project in South Boston with the late FBI agent John Connolly, who tipped Bulger off that the game was over, that his decades of being an FBI informant were over.  Connolly spent the end of his life in jail for that tip.

Bulger’s initial defense to the murder and racketeering charges were that he had been granted immunity from prosecution by the FBI; that he had a license to extort, run drugs and kill.  However, the trial judge refused to allow the defense.

 Whether it was approved or not, it was real.  When denied the immunity defense, Bulger, in trial testified that he wasn’t an informant, a “rat,” and that the Feds were corrupt and on his payroll.  They certainly were.  But he did have actual, apparent immunity for years. His lawyers have preserved his right to appeal and try for a new trial, this time using the immunity defense.

If anyone thinks that Bulger’s flight and eventual arrest were the end of law enforcement deciding to use some criminals against perceived larger threats, allowing smaller fish to commit crimes at will to get bigger fish, they’re clearly wrong.  The only shocking thing is how large a fish Bulger was and how long he was allowed to feed information on the Italian mob in the Northeast so that his Boston gang could freely commit their crimes.  The people of Boston  didn’t get a chance to approve the deal and wouldn’t have approved it at all. How big a criminal is too big to use against bigger fish?   If Bulger gets a second trial, the people of Boston may get a chance to have a say in that finally, albeit indirectly, and a four decades too late.