If you begin with the premise that all closing arguments are theater, the wrap to Whitey Bulger’s trial was more like Harold Pinter’s “Betrayal,” where the characters play head games, than Edward Albee’s “Who’s Afraid of Virginia Woolf,” in which everybody’s barking at each other.
The soliloquies were, like Pinter’s, more economical than extravagant. The protagonists, Fred Wyshak for the prosecution, Jay Carney and Hank Brennan for the defense, circled each other more like Flamenco dancers than cagefighters.
As the lawyers offered competing, wildly divergent narratives, Whitey sat at the defendant’s table, doodling on a legal pad. When he said something to his lawyers, he covered his mouth with a manila folder, like he was Bill Belichick calling in a screen play.
Wyshak’s closing was overly long, but then he was trying to catalog a staggering amount of criminality, including 19 murders, in which corpses were mutilated and dumped in secret graves before they were dug up and moved.
Wyshak talked for almost 3½ hours, and when he was done everybody was exhausted. Maybe a bit overwhelmed.
When it was the defense’s turn, Brennan, right out of the box, pointed his finger at the bad guy, but it wasn’t Whitey. It was the same government that enabled Whitey’s criminal career and then had the audacity to sit in judgment of him.
Brennan avoided mentioning any of the specific crimes Whitey is charged with, concentrating on the FBI that protected him, an organization that told him who to kill, and that lied to other cops, even FBI colleagues in Oklahoma, to save Whitey from their scrutiny.
But Brennan’s argument was severely undermined by his unwillingness to admit the blindingly obvious, which is that Whitey was protected by the FBI because he was its informant. You can debate how effective Whitey was as an informant, and I have argued for 25 years that Whitey was useless as an informant because he provided information on people who were far less dangerous and depraved than he was.
And as Wyshak noted, Whitey’s being an informant was irrelevant to the actual charges. The FBI didn’t pull the triggers, dump the bodies, or take a nap after killing somebody. Whitey did.
Still, nothing Brennan said was untrue, and it was impossible not to root for him as he ticked off the FBI’s atrocious behavior in enlisting, protecting, and tipping off Whitey and then not looking for him when he first went on the run, so he could fall off the grid and spend 16 years of bliss, living with his moll, Cathy Greig. That would be the same Cathy Greig who gave Whitey dental extraction tools that Steve Flemmi, Whitey’s partner in crime, used to rip the teeth from the heads of their victims so they couldn’t be identified.
There was a certain disconnect between the defense’s almost gleeful recounting of FBI and Justice Department corruption and the truth. What it was describing was the covering up of Whitey’s terrible crimes, but it was ludicrously ignoring the fact that Whitey was the guy behind those crimes.
There was a disturbing disingenuousness about the defense portraying Whitey as some poor, put-upon Everyman who was being unfairly bullied by an omnipotent government. Both Carney and Brennan asked the jury to, in essence, acquit Whitey, but couldn’t quite bring themselves to say the word “acquit” because even they knew that was absurd.
It felt like a con, a three-card monte table hastily erected on Boston Common, then just as quickly disassembled, as if the proprietor had to disappear before somebody figured out the con.
If the prosecution has played it a lot more matter-of-fact, sometimes to boring effect, the defense has done a good job of introducing color and lots of pop culture references. Brennan accused John Martorano, an admitted killer of 20 and key prosecution witness, of acting like Batman. During his closing, Carney invoked a character from “The Brady Bunch” when asking jurors to reject the testimony of Martorano and the prosecution’s two other key criminals-turned-witnesses.
If you saw somebody from “The Brady Bunch” hawking a beverage on TV, Carney said, you would assume they were paid for the endorsement and judge it accordingly. Then Carney spat on the floor, demonstrating how the “Brady Bunch” character might spit out the drink after filming the imaginary ad. The point was: Don’t believe the prosecution’s line-up of killers.
Carney actually suggested that if jurors loved the Constitution, they would acquit Whitey Bulger, to send a message to the corrupt government.
It reminded me of that scene in “Animal House” when the Deltas are on trial and Otter suggests the charges are trumped up by Dean Wormer. Otter gets up and indignantly declares that the prosecution of Delta House is not just corrupt but un-American and leads the Deltas out in protest, saying they wouldn’t take part in the sham.
That’s what Whitey called his trial. A sham.
Wyshak was much stronger on his rebuttal. He appeared genuinely offended by what Brennan and Carney had said. His voice was louder, edgier.
What bothered Wyshak most is the idea of Whitey and his lawyers acting like they care deeply about the Donahue family. This has been one of the simmering backstories of the trial.
A civil court has already ruled that Whitey Bulger shot and killed Michael Donahue, who had the misfortune of offering a ride home to a hoodlum named Brian Halloran, not knowing Halloran was marked for death after offering Whitey up to the FBI.
But Donahue’s widow, Pat, and their three sons Michael Jr., Shawn, and Tommy have been stymied in their 32-year odyssey to find all those responsible. They’ve been frustrated by the government’s seeming indifference to the identity of the second man in the car with Whitey.
There was evidence introduced at trial that Pat Nee, a Southie gangster implicated in many of Whitey’s crimes, was that second man. But throughout the trial, the defense has shown itself more willing to plumb the unsolved mystery of the second man.
Of course, that’s because it suits its strategy, to keep the jury focused on government misconduct, on the government being so obsessed with getting a guilty verdict against Whitey that it would overlook crimes by his confederates.
But, at the end of the day, Whitey and his lawyers are trying to escape the legal consequences of Michael Donahue’s death. They want the jury to acquit him.
And it is the hypocrisy at the heart of Whitey’s empty gesture — to offer the $822,000 seized from his Santa Monica apartment as recompense to the Donahues, and his lawyers insisting they want to do right by the victims — that infused Fred Wyshak with such indignation.
For years, it was Wyshak, prosecutor Brian Kelly, and State Police Lieutenant Steve Johnson and DEA agent Dan Doherty who sat in back of the Donahues in court, showing them support, defying their Justice Department colleagues who fought the Donahues’ lawsuit against the government.
And for all those years, Jay Carney and Hank Brennan, and certainly Whitey, were nowhere to be found.
“The defense wants to hold themselves up as sympathetic to the Donahues,” Wyshak said, as he wrapped up. “Don’t buy it.”
His was the argument much easier to buy.