Whitey Bulger and the Feds: The final act

Choosing the slow grind: Why are we trying Whitey in federal court, when state courts would deliver justice more swiftly?
By HARVEY A. SILVERGLATE  |  October 5, 2011


As the notorious and corrupt pas-de-deux between James "Whitey" Bulger and the Department of Justice approaches its finale with Bulger's capture and eventual trial in Massachusetts's Federal District Court, we are left to reassess the ultimate implications of this long and fateful dance. While Bulger's arrest represents an opportunity for both clarity and closure, the Boston United States attorney's strategy for trying him promises neither. Instead, it raises some profound questions.

>> READ: "Hollow Justice: Whitey's government enablers" by David Boeri <<

Federal prosecutors in Boston controversially dismissed the sweeping 1995 racketeering indictment that led Bulger to flee the state and become one of the FBI's Most Wanted. US Attorney Carmen Ortiz chose to focus instead on a newer, and significantly narrower, racketeering indictment centering on 19 murders in which Bulger is alleged to have had a hand, pending before Judge Richard G. Stearns.

The original indictment, she said, had weaker evidence and deceased witnesses, and would be a more expansive case to prosecute. The ultimate goal, Ortiz said, is to "[ensure] that the defendant faces the most serious charges before the end of his natural life." Bulger is, after all, 82 years old, and both the government and the families of the victims would like to see justice done as quickly and efficiently as possible.

Even so, the federal case against Bulger — contained in an 111-page, 48-count indictment — could drag on for years. But it doesn't have to. If the government wants to give the victims' families closure, there exists a much leaner and speedier solution: turn Bulger over to one of the numerous state jurisdictions where he allegedly committed crimes and where, after a very short trial, he could be imprisoned for life without parole, or even face the death penalty.

A state case would be simpler to try. Bulger stands accused of having a hand in 19 murders, but murder by itself only lands in federal court if it's committed on federal property, or if the victims are federal employees. Otherwise, a federal court has to show that the murder was committed as part of a federal offense, like racketeering — that's what the feds are going for in Bulger's case.

But in state court, prosecutors would only have to prove Bulger was involved in the murders, not the racketeering scheme surrounding them. Jury deliberations likely would be relatively short, since the jurors would not have to jump through all of the many complex sets of fact-findings required for a federal racketeering conviction.

And states are no less severe than the feds in penalizing murder. Massachusetts routinely imposes the life-without-parole sentence for first-degree murder. Several other states retain the death penalty.

Gangsters have been tried in state court before. Consider disgraced FBI agent John Connolly, a case with direct implications on the viability of a Whitey Bulger case in state court.

Connolly was indicted, in a highly complex federal racketeering case — involving allegations of falsifying reports, accepting bribes, funneling payoffs, and obstructing justice — in December of 1999. The federal case took three years to grind through the system. But when the state of Florida indicted Connolly for his role in the murder of a witness who had been supposed to testify against Bulger, it took two months from jury selection to conviction, with a sentence of 40 years in prison. He remains in a Florida cell to this day, and will stay there for the rest of his expected natural life.

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  Topics: News Features , Whitey Bulger, FBI, Bulger trial
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