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Legal Analysis

Two views of government in ‘Whitey’ Bulger trial

Jurors deliver overwhelming verdict, disregard informant issue

In the end, the FBI informant file did not matter.

Jurors in the trial of James “Whitey” Bulger delivered an unambiguous verdict, finding that Bulger ran a criminal enterprise, extorted hundreds of thousands of dollars, sold drugs, laundered money, and killed people.

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“It was a sweeping vindication for the government, at least for the prosecution,” said Brad Bailey, a former state and federal prosecutor and a defense lawyer who has been following the case. “This was a very widespread victory.”

After five days of deliberations totaling 32½ hours — and after 35 days of testimony by 72 witnesses — the jury of eight men and four women found Bulger guilty of all but one of the 32 counts he faced. And the jury found Bulger responsible for most of the 33 racketeering acts he was charged with, including 11 of 19 murders.

From the beginning, his lawyers had tried to shift the focus of the trial to government corruption, while maintaining that the gangster was never an FBI informant, in spite of a hefty FBI file in his name. The lawyers had argued that Bulger was paying FBI agents for information, but that he never provided it.

Tom Donahue spoke after the verdict was read.

ARAM BOGHOSIAN FOR THE GLOBE

Tom Donahue spoke after the verdict was read.

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But whether Bulger was an informant was not a question before the jurors.

“It’s not a traditional defense to allegations of murder, and the jury properly did not exonerate him of crimes they apparently believe he committed,” said Martin Weinberg, a Boston defense lawyer. “Whether he was an informant or not was irrelevant to the jury’s determination that he committed these crimes.”

After the verdicts were read, Bulger’s lawyers maintained that the case was about more than Bulger and his crimes and that they had sought to expose a history of government corruption. And they believe they were successful.

Bulger “knew from the moment he was arrested that he was going to die behind the walls of a prison or on a gurney getting injected with a chemical that would kill him,” said J.W. Carney Jr. “This trial has never been about Jim Bulger getting set free.”

He added, “At this point in his life, he’d prefer to have the truth come out, rather than just the lies.”

Legal observers agreed that Bulger’s trial painted an ugly picture of government corruption: Former FBI agents who were accused of taking bribes were never charged because they cooperated with the government or because a federal statute of limitations had expired. And, to make the case against Bulger, the government relied on several admitted murderers who received deals in exchange for their cooperation. One of them, John Martorano, admitted to 20 murders, but served only 12 years in prison and walked into the courthouse as a free man.

Legal analysts said jurors apparently disliked Martorano and his testimony: Of the 19 murders Bulger was charged with, jurors found that prosecutors failed to prove Bulger committed seven of them; the government’s evidence in those killings was based on testimony by Martorano.

The jury could not make a finding on the killing of Debra Davis, one of the two women Bulger was charged with killing. Bulger’s former partner, Stephen “The Rifleman” Flemmi, who escaped the death penalty in exchange for his testimony, had alleged that Bulger had killed Davis, but the jury appeared to not believe him, either. A juror who spoke to WBZ radio said that some members of the panel doubted Flemmi’s credibility.

Steve Davis, Debra’s brother, said that regardless of the verdict, he was certain that Bulger took part in her slaying. Families of some of the seven victims whose death Bulger was found not responsible for were upset by the jury’s findings.

The government’s failure to charge others in the case has triggered a public outcry. One of Bulger’s former associates, Patrick Nee, was never charged in the case, though several witnesses testified that he was an accomplice in several murders.

Tom Donahue, the son of Michael Donahue, whom Bulger shot in May 1982, learned for the first time in the trial that Nee was allegedly a second gunman in Bulger’s car during the shooting.

“Why the hell is he walking the streets?” Tom Donahue said. “He was involved in a lot of murders, not just my dad’s. . . . Pat Nee is a very dangerous and very sick individual, and he needs to be tried in my dad’s murder.”

US Attorney Carmen M. Ortiz said prosecutors charged people when they had sufficient evidence. She said her office would work with state officials to investigate whether any murder charges could be brought against Nee.

Vincent B. Lisi, the recently appointed special agent in charge of the Boston FBI, said the makeup of his office is far different than it was when Bulger was allowed to carry out his crimes.

“We went through a dark period where there was corruption, but we’re beyond that,” he said. “We’re going to do everything we can to regain the trust of those who’ve lost it.”

Bulger’s lawyer Hank Brennan said the trial exposed even more about government wrongdoing than he expected, and he said Bulger would have had more to say if he had testified. Bulger decided not to, however, once he was prevented from raising an immunity defense.

“I don’t think you’ve heard the last word from James Bulger,” Brennan said.

Martine Powers of the Globe staff contributed to this report. Milton J. Valencia can be reached at milton.valencia@
globe.com
. Follow him on Twitter @miltonvalencia.
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