Mimesis Law
22 November 2019

Whitey Bulger Benefited from a System that Cared More About Winning than Protecting the Public

Sept. 22, 2015 (Mimesis Law) — According to The New Yorker, prosecutors and police gave James “Whitey” Bulger whatever he wanted. On their watch, people died. Drugs were sold. Power shifted to Bulger, who, unlike his competitors, could act with impunity under the mantle of his handlers. In exchange, Bulger gave the police “42 stone criminals.”

Or at least, that’s what his handlers said. See, they were a little biased. Something about the hundreds of thousands of dollars in gifts he gave them. Something about the blackmail material he held over their heads every time they let him do a new bad thing. Maybe he just had a winning personality.

It’s possible he might have given the police significantly less than “42 stone criminals.” His handlers might have taken tidbits from other confidential informant’s files to make him look better, to improve their own career prospects.

As for the reliability of his tips … it is possible that a criminal who would hire an assassin to shoot an unarmed man in the face might also fib, from time to time, to improve his own standing in the world.

But however useful he was in the actual pursuit of justice, until 1994, Bulger could do no wrong. When a grand jury began to investigate him, his handler tipped him off and he vanished, the beneficiary of a system that exchanges cash and clemency for convictions.

The system didn’t end with Bulger, of course. Snitch testimony, like the plea bargaining that enables it, is the lubricant of our justice system. Sure, there are some who would say that it produces unreliable convictions. Texas even briefly flirted with the idea of banning compensated testimony altogether in death penalty cases.

But the fact remains that giving money and power to men like Bulger in exchange for their assistance is such a baked-in part of our legal system that prosecutors and police can’t imagine living without it.

When the Tenth Circuit Court of Appeals held that the federal bribery statute should apply against the government, there was a mass panic. Prosecutors anticipated that future convictions would become impossible to obtain.

It’s worth quoting the language of the initial opinion:

The judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money. Because prosecutors bear a weighty responsibility to do justice and observe the law in the course of a prosecution, it is particularly appropriate to apply the strictures of [the bribery statute] to their activities.

This was a short-lived victory for the defense bar. It was only a matter of months before the rest of the Tenth Circuit vacated the opinion, and in a 9-3 decision, reversed it.

Banning bribery in exchange for testimony, the Court said, “would not only be a radical departure from the ingrained legal culture of our criminal justice system but would also result in criminalizing historic practice and established law.” Acknowledging that the government is “not above the law,” the court held that “we simply believe this particular statute does not exist for the government.”

Alright, so the government has a sacred right to compensate witnesses for their testimony. And maybe compensated testimony really is necessary for our system to function, since our police with all their “new professionalism” are vastly worse at solving crimes than they were fifty years ago.

But even if snitches are inevitable, their corrosive effect on the machinery of justice is not. Bulger’s handlers were so invested in his continued well-being that one of them suffered a heart-attack when he learned that Bulger had been indicted. At some point, they moved well past protecting a cherished source—they began working on Bulger’s behalf to protect themselves.

And prosecutors are no more immune to this corruption than police officers. In Orange County, local prosecutors were more than willing to pretend that it was a coincidence that all their most consistent snitches kept being placed next to the defendants that police wanted to nail. Confidential informants win cases. And everybody loves a winner.

Whitey Bulger benefitted from a system that cared more about results than process. That, near the end of his life, he was sentenced to spend his golden years in prison does little to fix the fact that he spent decades out in the world killing people with government protection. Now, from prison, he reports that he “lived a good life.”

Maybe the prosecutors and police who helped Bulger don’t begrudge him that. Could be that it was all a fair trade for the notches they added to their belt—convictions and drug busts and promotions. But for the people who did not personally benefit from Bulger’s magnamity, the people whose taxpayer dollars funded the government’s largesse, it might seem a bit of a raw deal.

But as long as bad men make good cases, it will be a deal the government takes. Every time.

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