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Donald K. Stern

Lessons from Whitey

By Donald K. Stern
July 27, 2011

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THE RECENT capture of longtime fugitive James “Whitey’’ Bulger has led to certain discordant images. An 81-year-old defendant brought into federal court to finally face charges of 19 murders that, in some cases, go back almost 40 years. The families of victims who, while eager to see justice, are forced to relive painful losses. A much-changed South Boston community having to hear about an era many would just as soon forget. And law enforcement agencies confronting old wounds and sharp divisions.

It would be a mistake to relegate the unsavory details that will be part of the eventual trial of Whitey Bulger as historic artifacts. There are lessons that can guide us today and in the future.

■ Justice delayed can still be justice. Bulger evaded capture for 16 years. There should be a full investigation and accounting of how he was able to do so, including whether he was assisted by others. At the same time, the long delay should not make us lose sight of the importance of holding him accountable for the very serious charges pending against him. The criminal justice system can be slow and sometimes uneven, but it usually ends up in the right place.

■ Some deals are worth making. The government made several controversial deals with criminals (most notably, with John Martorano) in an effort to develop evidence against others. The public (and the jury) has every right to view such deals with healthy skepticism, even disgust. But, in some cases, such deals are the best (and maybe the only) way to build a case against those most responsible for violent criminal conduct. That certainly was the case here.

■ Informants can be big trouble. Bulger and Steve Flemmi were FBI informants at the same time they allegedly were responsible for scores of murders. That was a failure not only of a few corrupt FBI agents. It was also a failure of a supervisory system that did not provide sufficient checks and balances when it came to the handling of high-level informants. Those guidelines have since been changed for the better. But dealing with informants is treacherous territory, and oversight of that relationship is critically important. It was then and it still is.

■ Law enforcement cooperation. In the old days (which were not so long ago), the FBI took its mantra as the premier law enforcement agency to mean that it would not share information with other law enforcement agencies. Cooperation was often a one-way street. However, the deep distrust created by the rise and fall of Whitey Bulger has been overtaken by new personnel. It has also been supplanted by a more genuine level of cooperation between the FBI and other law enforcement agencies. It is not perfect, and rivalries still exist. Nevertheless, it is a long way from what it used to be.

■ It takes a village . Legitimate questions have been raised about whether there were “enablers’’ of Bulger that permitted him to consolidate his power. There were certainly those in his family, law enforcement, the media, the political world, and the South Boston community that lent a hand, even if all were not fully aware of the level of violence and terror for which he was eventually indicted. Still, it is worth remembering that there is nothing glamorous or romantic about a crime boss.

■ The role of victims. The anguish of family members of the victims in the charged murders is heart-wrenching. In the past, these voices would be a faint echo of the action in the courtroom. Fortunately, the criminal justice system now recognizes their right to be informed, and in some cases, to participate in the process. This is a very good thing.

■ Long memories can help. The core team of federal prosecutors and investigators is still in place (with some exceptions). That is a testament to their dedication and hard work. This dark chapter of Boston history can now play out in a court of law. The jury will determine what is the truth and what is justice. The rest of us will have to remember the lessons of the past.

Donald K. Stern is a partner at Cooley LLP. He was the US attorney in Massachusetts when James Bulger was indicted.