As jurors deliberated the fate of James “Whitey” Bulger for a second day, they asked the judge Wednesday if they must reach a unanimous verdict on 19 murders and 14 other criminal acts, raising the possibility that there are split opinions among the panel.
US District Judge Denise J. Casper told jurors that they must unanimously agree on whether each of the 33 acts, which are listed under a single count of racketeering, are proven or unproven.
Casper told the jurors, “If you cannot reach a unanimous decision . . . you should make no finding in that act and move on to the next act.”
Boston defense lawyer Brad Bailey said the jury’s question suggested “that there may be some disagreement on some of the racketeering acts.”
Steve Davis — the brother of Debra Davis, one of Bulger’s alleged victims — said he would be disappointed if the jury skipped over the question of whether Bulger was involved in the killing of his sister.
But, regardless of the jury’s decision, “I know he had a share in my sister’s death,” he said. “There’s no question of whether he was involved in it.”
The jury’s question capped a day in which jurors deliberated for 7½ hours on top of the 5½ hours they spent weighing the case the day before.
The four women and eight men looked tired as they were sent home with instructions to resume deliberations at 9 a.m. Thursday.
On Wednesday, they sent a flurry of questions to the judge, who answered many of them in public.
But Casper huddled with defense lawyers and prosecutors during a series of secret sidebars over two hours to address an unknown issue. The back-and-forth seemed to grow so serious that US Attorney Carmen M. Ortiz was involved.
The judge appeared to resolve the issue as jurors continued to deliberate, but she offered no public explanation, much to the dismay of the families of Bulger’s alleged victims, who sat anxiously in the courtroom worrying about whether the case is in jeopardy.
“It’s frustrating, all this secrecy,” said Pat Donahue, the wife of Michael Donahue, one of Bulger’s alleged victims.
Bailey, who is also a former prosecutor and who has been watching the case, speculated that the issue could have involved a juror because the judge handled it privately, rather than in open court.
“It suggests it was a personal issue or a personality issue that wasn’t susceptible to an answer or instruction by the judge,” he said.
Jurors began deliberating Tuesday after hearing 72 witnesses over 35 days of testimony. Bulger, who was captured in Santa Monica, Calif., in June 2011 after more than 16 years on the run, faces a life sentence if found guilty of even one of the slayings.
Bulger, 83, faces a 32-count indictment that alleges that he participated in a criminal enterprise — initially the Winter Hill Gang and later a South Boston gang — from the 1970s to the 1990s and raked in millions from drug trafficking and extortion.
One of those racketeering counts contains 33 acts, including allegations that Bulger participated in 19 murders, six extortions, and conspired to sell marijuana and cocaine.
Casper explained to jurors that they only need to find that the government proved Bulger committed two of the acts within a 10-year period to convict him of racketeering. The other 31 counts include conspiracy to commit racketeering, extortion, money laundering, and possession of a small arsenal of machine guns and handguns.
As the families of some of Bulger’s alleged victims waited for a verdict, the daughter of a Braintree man whose body washed ashore on Carson Beach in South Boston in 1973 joined them, to commiserate and raise questions about whether there was any link between her father’s mysterious death and Bulger’s organization.
Ann Flynn Dickinson, 52, wore a photograph of her father, Owen Flynn, pinned to her denim jacket and showed reporters a death certificate that listed the cause of his death as drowning, yet listed the circumstances as “unknown.”
Flynn, 42, a native of Ireland, co-owned the Downey and Judge Cafe in Boston’s North End, and his car was found abandoned near the Granite Avenue bridge in Dorchester on Dec. 8, 1972.
His body was discovered the following month.
“I know that my father did not walk out on my family,” said Dickinson, adding that she hoped that Bulger’s trial, which included testimony about dozens of gangland slayings, would offer some clues about her father’s death. But it did not.
“I had to meet the families” of Bulger’s alleged victims, Dickinson said after speaking to some of them in the courthouse hallway. “I can relate.”
The families have maintained a vigil at the courthouse as the jury deliberates and speculated about what the jurors’ questions meant.
The jury also asked for copies of the judge’s instructions on the law and clarifications on the definitions of “conspiracy to murder” and “aiding and abetting.”
One of Bulger’s lawyers, J.W. Carney Jr., said, “What you learn over the years, over the decades, is not to read too much into the questions.”