In Defense of Whitey Bulger

         It is unlikely that Vercingetorix in chains before the Capitol caused a greater stir among the populace of ancient Rome than did the return of Whitey Bulger in handcuffs among the populace of Boston.

            The Hiroshima of publicity unleashed by this story and the “legs” it continues to show (whenever Whitey burps it is front page news) contain a solution to the nettlesome problem of how to provide for the legal defense of a man who made millions running a sordid criminal enterprise but now claims to be indigent. Taxpayers understandably resent underwriting the defense of a man whose criminal activity they regard as particularly obnoxious, even for gangsters.

            What to do?

            Step one: Those involved should think sensibly and creatively, like American citizens, rather than blindly and legalistically, like American lawyers.

            Step two: Jettison the idea of court-appointed counsel. A defendant as intelligent as Whitey in a case this big with a story this notorious should be permitted to choose and required to pay for his own counsel.

            Step three: Don’t appoint a lawyer, but do appoint a business agent for Whitey, someone who specializes in the negotiation of book, movie, and television deals and whose fee is pegged to the amount of money he secures.  

            Step four: Invite every impresario in Hollywood, television, and publishing to submit bids for the exclusive rights to The Whitey Bulger Story, the non-fictionalized version of which will be far more riveting than anything chronicled by Martin Scorcese in “The Departed”. When the ensuing bidding war is over, I suspect that the final negotiated number will run well into the mid nine figures. 

            Step five: Establish the “Whitey Bulger Charitable Trust” for the benefit of all victims and their families savaged by the depredations of Bulger and Flemmi, similar to the trust set up for the victims of 9/11. Appoint three professional co-trustees to manage the trust corpus and a panel of three lawyers to adjudicate the claims. As public servants they should agree to work for a modest fee in the interests of the common good. The money from all movie, TV, book, and magazine rights will be paid directly into the trust, never passing through Whitey’s hands. That fact alone will be the first phase of punishment for a man accustomed to handling millions of dollars in cash. 

            Step six: Once the trust is funded, permit Whitey to select his own defense team, whose hourly rates he of all people is well-equipped to negotiate and which will be paid for by the trustees out of trust property

            This approach has advantages that are at once practical, symmetrical, and sublime.

            The use of private enterprise rather than public largesse should remove Whitey’s defense from the sometimes-constraining provisions of the Criminal Justice Act (if it does not, then Congress needs to amend the CJA, pronto). This solution also eliminates the skirmishing currently underway between prosecutors and court-appointed counsel on the subject of Bulger’s indigence. Moreover, Whitey, and not some federal judge, gets to select his own lawyers, thus depriving him of a claim on appeal that his allergic reaction to an ineffective, court-appointed “dream team” hampered him in the preparation and presentation of his defense. Further, already hard-pressed American taxpayers will be freed from the additional burden of seeing their money go toward the defense of a man whose activities they regard as particularly obnoxious. Further still, immediately monetizing the Whitey Bulger Story in this way not only sells it “at the high” but also insures that those who have been most victimized by the Whitey narrative - namely, the victims and their families rather than the lawyers or Whitey himself  - will emerge as its principal beneficiaries, a nice vindication of the iron rule of symmetry that what goes around finally comes around.

            Lastly, and most sublimely, this solution makes it possible (although not guaranteed) that on the day he looks his Maker in the eye, a remorseful Whitey Bulger will proffer as his final defense the atoning plea of Samuel Johnson: “… that I who have trifled till diligence is necessary, might yet hold myself superior to multitudes who have trifled till diligence is vain.” 

            If Whitey can pull that last one off, then he will have died as he had lived, for he will have stolen Paradise.