As jurors weighing the fate of James “Whitey” Bulger were sent home Friday after deliberating for four days without reaching a verdict, legal observers said that lengthy deliberations are common in complex racketeering cases and that it is impossible to discern whether the jury is divided or just being diligent.
Making an objective judgment despite Bulger’s extreme notoriety is hard enough, but observers say the jurors have a mountain of a task in front of them, sorting through a 32-count racketeering indictment encompassing 33 alleged criminal acts, including 19 murders, half a dozen acts of extortion, a drug trafficking conspiracy, a money laundering conspiracy and other charges.
“It’s actually a lot of cases within one case. . . . It should take you a long time,” said former Middlesex district attorney Gerard T. Leone.
Boston criminal defense lawyer Martin G. Weinberg said the jury could be acting methodically on some charges and disagreeing on others.
“We all know that we don’t know . . . how individual groups of 12 digest weeks of testimony, and that’s the genius of the American judicial system,” he said. “The jury is doing Boston proud and giving Mr. Bulger the fairest of fair trials.”
US District Judge Denise J. Casper excused the four women and eight men Friday afternoon with a warning not to research the case or follow any news accounts and told them to resume deliberations at the federal courthouse on Monday at 9 a.m. So far, they have weighed the case for 28 hours after listening to 35 days of testimony from 72 witnesses.
Bulger, 83, who was arrested in June 2011 after more than 16 years on the run, is charged with running a sprawling criminal enterprise from the 1970s through the 1990s that raked in millions from drug trafficking and extortion, while paying off corrupt FBI agents and killing people who crossed him or were viewed as a threat to him or his associates.
“I think there’s another complicating factor, and that’s the government bad behavior factor,” Leone said. “I think that is probably causing some jurors to hedge before they will convict on certain crimes.”
Leone acknowledged that it is impossible to know what is going on in the jury room, but said the jury probably would have sent word to the judge if there was a problem.
“It sounds like they’re still working together and working through the issues,” Leone speculated.
The families of many of Bulger’s alleged victims also spent another day at the courthouse, some playing blackjack in the cafeteria and chatting, bonding over their shared loss and long wait for justice.
“I think the longer it takes, the more nervous you become,” said Cheryl Connors, whose father Eddie Connors was allegedly gunned down by Bulger and his partner, Stephen “The Rifleman” Flemmi, in 1975. But she added, “I think it’s because they have so much information to go over.”
Bulger’s defense team put the government on trial as it focused on his corrupt relationship with the FBI, while pressing the reputed gangster’s assertion that he was not an informant. Bulger said he paid FBI agents for information and they allowed him to operate with impunity.
Prosecutors portrayed him as a “murderous thug” who got away with murder and ran a criminal enterprise that rivaled the Mafia. They allege that Bulger’s former handler, FBI agent John J. Connolly Jr., leaked him information that led to the slayings of three other FBI informants, an innocent bystander, and a potential witness.
Some of the most chilling testimony during Bulger’s trial came from three of Bulger’s closest former associates, Flemmi, John Martorano, and Kevin Weeks, who cut plea deals with the government and cooperated against Bulger, Connolly, and others. All three confessed to their own role in murders and implicated Bulger in those he stands accused of.
Brad Bailey, a defense lawyer and former prosecutor, said he had predicted the verdict would have been reached by now because prosecutors had “seamlessly” presented their case.
But the ongoing deliberations reflect the complexity of the indictment and questionable testimony by witnesses whose credibility came under heavy attack by the defense, he said.
Bailey said it was possible the jury is divided on some of the 33 acts listed under the racketeering count.
“Whether it’s over one racketeering act or three or one juror, or three, who knows,” Bailey said. “But something or someone is giving them pause in there.”
Bailey added that such pause is to be expected, given the complexity of the case that charges Bulger with crimes that span several decades.
Casper instructed jurors earlier this week that they must reach a unanimous decision on whether each criminal act was proven or unproven, and though she told them they could skip over an act if they could not agree, she urged them to “conscientiously” try.
“I don’t think they are going to be cavalier with these kinds of acts,” said Boston lawyer Frank Mondano, adding that it is premature to suggest the jury is having difficulty reaching a verdict. “The jury is taking their responsibility quite seriously, which is a good thing.”
Mondano said it is not uncommon for juries to hold lengthy deliberations in racketeering cases, which can allege multiple layers of conspiracy.
Patricia Donahue, whose husband, Michael, was shot to death, allegedly by Bulger in 1982 while giving a ride home to his intended target, said the wait was frustrating, but “I think they’re doing their job, and they’re being cautious to make sure they make the right choices. . . . Maybe it’s better they don’t come back soon.”
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