Bulger Day 35: The Closing Arguments

So Whitey Bulger’s on trial and you’re interested in hearing about it, but you’ve got this darn day job and you can’t manage to keep up with all the live tweets. We feel you. Here’s what you missed. (Past coverage here.)

“We’ve been here two months and we’re near the end,” Assistant U.S. Attorney Fred Wyshak said at the outset of his closing argument in the trial of Whitey Bulger. “Near,” is a relative term, of course, because before that end was reached, the jury would hear over three hours of arguments from both the prosecution and the defense, beginning with Wyshak, continuing to a defense argument split between Hank Brennan and J.W. Carney Jr., and ending with a short rebuttal from Wyshak.

Prosecution:

Wyshak spent the bulk of his opening hour urging the jury to focus only on what’s important in the case.”In the final analysis, ladies and gentlemen, you don’t have to decide whether Mr. Bulger was an FBI informant or not. It’s not something that’s an element of these crimes,” he said, despite the fact that both defense and prosecution focused much of their questioning of witnesses on that “non-element.” “It does not matter that Mr. Bulger was an FBI informant when he pulled the gun to Arthur Barrett’s head an pulled the trigger.”

Wyshak agreed with the jury that the star witnesses in the case, John Martorano, Kevin Weeks, and Stephen Flemmi were unsavory figures, but said that should reflect on Bulger, who chose to associate with them, rather than excuse Bulger from his crimes. Slight inconsistencies in their recall of events from over 20 years ago shouldn’t matter as much as the uncontested details of the key events. “It’s like watching a grand slam walk off homer at a Red Sox game,” he said. Twenty years later, you’ll remember who hit the ball. You won’t recall who was on first.

Wyshak explained the requirements for finding someone guilty of racketeering under federal law, and then he summarized each of the 33 acts, including 19 murders, that form Bulger’s racketeering indictment. He got some grumbling reviews from courtroom reporters who said he may have gone into too much detail and taken too long to really hold the jury’s attention with each of the charges. But as he went through, he continued to remind the jury to focus on what’s legally important. While there’s been a dispute about who actually strangled Debra Davis, for instance, the jury need only find that Bulger was part of the conspiracy. “You don’t have to decide who strangled her.”

After he sped through the counts of extortion and money laundering, Wyshak ended by reminding the jury that Bulger had hidden himself in a Santa Monica apartment with a stash of guns and cash in his walls. “This is a man who had a guilty conscience,” he said, winding up. “There is only one verdict you can return and that is a verdict of guilty on each and every count of the indictment.” And with that, the jury broke for lunch.

Defense:

Bulger’s lawyers Hank Brennan and J.W. Carney Jr. split the closing argument in two, with Brennan beginning. Brennan focused on the government’s culpability in the murders, arguing that the protection of criminals wasn’t just the result of a couple bad apples in the Boston FBI office, but a systemic policy. How else could the jury have seen the parade of career criminals walking into the courtroom having served almost no time for their crimes? The argument seemed to go something like: the government messed up badly, and you need to hold them accountable by … finding Bulger not guilty. “There has been accountability, and this government needs to be held accountable. You tell them that,” Brennan said.

When Carney took over, he focused in on the three star witnesses John Martorano, Kevin Weeks, and Stephen Flemmi, noting that much of the murder evidence came from their mouths. Carney admitted once again, as he did in opening arguments, that Bulger made millions in the drug trade, which is almost as good as admitting to the racketeering and extortion charges. His closing argument today focused mainly on the murders. “The government cannot prove its case without you believing those witnesses.”

He then reminded the jury of their unsavory ways. Kevin Weeks, he notes, was the first witness to ever invite Carney to step outside and rumble. (That did, in fact, happen.) Flemmi wouldn’t admit that Deborah Hussey called him “Daddy” growing up and sat on his lap. He admitted to having oral sex with her when she was a teenager. (The fact that she admitted this to her mother, Carney says, gave Flemmi, not Bulger, pretty good motive to murder her.) Small lapses in the details Flemmi provided, Carney said, do matter, despite what the government says. He characterized all three mens’ testimony as a service provided in exchange for the currency that only the government has to offer: freedom from incarceration. In exchange, they tacked Bulger onto the crimes to which they’d already admitted “like a spice” to a recipe, he said. Anyone who didn’t cooperate felt the full force of the powerful federal government.

“You have the power to stand up to government abuse,” he concluded.

Rebuttal: Wyshak was then offered a brief chance to rebut Carney’s argument, which he did by pointing out ways Carney twisted the evidence. “Let’s get back to reality, here,” he said. Carney misstated evidence when he suggested that Deborah Hussey told her mother that Flemmi abused her and then she wound up dead. The two episodes were actually three years apart. The jury’s task, he reminded them, wasn’t to punish the government or send it a message for its misconduct, but to rule on Bulger’s crimes.

Finally, he said that the defense’s words of sympathy for the victims’ families—who, like Carney, probably have a lot to say about the sweet deals given to Weeks and Martorano—don’t make much sense. “Mr. Bulger is the one who pulled the trigger,” he said. “They want to feign sympathy for them? Don’t buy it.”

We’ll see just what they buy after the judge gives the jury instructions for deliberation tomorrow. After that, it’s anybody’s bet how long it takes them to return a verdict.