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opinion | donald k. stern

Plea deals: A necessary evil

The US attorney who approved the Martorano agreement defends it

JOHN TLUMACKI/GLOBE STAFF; globe staff photo illustration

The James “Whitey’’ Bulger trial focused considerable attention on the violent crimes of the Bulger group, which killed, dealt drugs, threatened, and devastated families and communities during Bulger’s 25-year reign of terror.

At the same time, the trial highlighted the corrupt relationship between Bulger and law enforcement, particularly the FBI, which helped him evade prosecution all those years. It also raised serious issues about the power and limits of criminal prosecution.

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The verdicts were a resounding victory for prosecutors and investigators who long sought to bring Bulger to justice. Their hard work, dedication, and sacrifice should not be diminished. Any suggestion that this team is part of a government coverup or failed to do its job is misguided. There are real difficulties in proving murders committed many years ago, without forensic evidence and with witnesses who are criminals. And, while I have some disagreements with how defense counsel proceeded, their efforts to zealously defend their client should also be commended.

The goal of a criminal trial is to determine if the government has met its burden of proving the charges. It is a narrow lens, governed by rules of evidence and confined by the contours of the charges. It is a blunt instrument not well suited to address broader issues of public policy. The defendant’s appeal to jury nullification (“blame the government and let the murderer go free”) predictably failed.

A verdict tailored to the evidence also reflects the seriousness that juries typically bring to the task. Armchair pundits and bloggers rarely hear all the evidence or have to actually decide. We should be grateful that our imperfect system is still the best around.

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To some extent, this was a show trial — albeit a show that needed to go on. The government could have tried Bulger on possession of the guns found in California, won a quick and easy conviction, and gotten a very lengthy sentence for the 83-year-old defendant. But families of the victims as well as the public would have been denied the view of the depravity and corruption that infected Boston for years. The story needed to be told.

It was also a show for Bulger, although his motivation is less clear. He could have pleaded guilty and been done with it. Bulger’s lawyers have said that he knew when he was arrested that he would die in prison. Yet Bulger embarked on a strategy that had little to do with the usual reasons a defendant tests the criminal charges and more to do with the delusional effort to still be seen as the “not so bad” gangster.

‘The only thing worse than the plea deal was not to do this deal.’

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Bulger’s claim that he wanted to uncover corruption, as he tried to wrap himself in the mantle of the victims’ families, was a cynical effort to control the narrative. His gesture of asking that the cash found in his California apartment go to certain of the victims’ families is consistent with his sick notion that there is a distinction between deserving and undeserving murder victims.

Bulger’s decision not to testify was not because the judge ruled that he could not raise an immunity defense. Rather, he simply failed to present any evidence that supports his claim or that the law recognizes what amounts to a license to kill. Bulger saw that cross examination can be an effective tool to get at the truth and knew that he had no answers for the grilling. He blinked.

Whether Bulger was really an informant was clearly something the defense repeatedly pressed, in what amounted to a parallel universe trial. This issue had nothing to do with the criminal charges. It did, however, make his claim that he had immunity to commit murder even more absurd.

The defense was successful, however, in making “rat” the dirtiest word used during the trial. Some government witnesses and victims’ family members spat the word. However, the risk is that the public now believes that the use of informants, no matter how well controlled and supervised, is a corrupt practice. This would be a mistake.

The fact that Bulger had a corrupt relationship with law enforcement was front and center in the government’s case. The prosecutors hardly sought to play it down, even as they made clear it was not a defense. And, of course, the defense appropriately brought out all the disturbing details in an effort (albeit unsuccessfully) to get the jury to focus on government corruption rather than the heinous crimes of the defendant.

But we should be clear about what “government corruption” is since it is now part of every story about the Bulger trial. It should be about the corrupt relationship between Bulger and law enforcement. Yet somehow this concept has been expanded by some to include the conduct of the prosecutors and the plea agreements. This is inaccurate and unfair, even if one believes the plea agreements to be very distasteful, as I did when I approved them. My point is that you should not lump together the secret bribing of FBI agents who then protected a murderer and even gave information that led to murders with a written plea agreement filed in court, accepted by a federal judge, and subject to cross examination if that defendant later testifies (as happened here).

But what about the plea agreements? I said at the time the Martorano plea was filed in 1999 that the only thing worse than the plea deal was not to do this deal. I still think that, even as I recognize the force of those who criticize the deals as a bargain with the devil or even question the entire practice of giving any benefit to those who plead guilty and agree to cooperate.

The truth is that we had no evidence to prosecute Martorano for the murders. He only “confessed” after we agreed on a cap on the additional sentence he would serve. I know, it stinks. But his cooperation led to the prosecution of Bulger and Stephen Flemmi and prompted others to provide information about the location of the buried murder victims. There was no other way to crack the inner sanctum.

Finally, let’s address the issue of cameras in the court. By and large the media coverage of the trial was informed and balanced. But the time has come to permit cameras in the federal courts. The public shouldn’t trust the prosecutors, the defense lawyers, or the media. They should be able to decide for themselves.

Donald K. Stern is managing director at Affiliated Monitors and an attorney with Yurko, Salvesen & Remzstern. He was the US attorney in Massachusetts when James Bulger was indicted.
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