Film Festival Preview: Whitey Bulger’s attorney on government corruption

Photo courtesy of Henry Brennan

It is a relatively uncommon occurrence for a major U.S. crime figure to surface unscathed for arraignment, and, rather than plead out or vanish into a protection program, head into a full-blown trial. For a leading member of such a crime figure’s legal team to discuss his client’s case in the public domain is perhaps a more uncommon occurrence. Until his 2011 capture in California (approximately two months after Navy Seals dispatched one of the few fugitives that ranked ahead of him on the FBI’s 10 Most Wanted List) Bay State gangster James “Whitey” Bulger had proved virtually untouchable by any tier of law enforcement. In the days leading up to his speaking engagement at the Martha’s Vineyard Film Festival alongside the documentary “Whitey: USA v. James J. Bulger,” attorney Hank Brennan, a key participant in Bulger’s defense, talked with the MV Times. In the interview, Brennan offers reasons that may have contributed to Bulger’s untouchability, as well as other information on the Bulger case. Some of the following information has never before been made public by Mr. Brennan.

Given the scope of the allegations against Mr. Bulger and thus the scope of the defense that would be necessary in representing him, what prompted your decision to embrace such a herculean task?

As a trial lawyer, I have always sought to try the most difficult and complex cases. This case was a study in politics, history, federal corruption, and the underworld. Having an opportunity to learn firsthand about the underbelly of our Department of Justice’s (DOJ) corruption, and what motivated our DOJ to engage in decades of cover-up and continued victimization of its citizens, was a history that I felt compelled to learn about. I appreciated that this case would be extraordinary and difficult. I did not anticipate how fortunate I would be to develop the relationships and friendships that resulted.

Since attorneys are known more for their reticence regarding their clients, what prompted you to participate in a film about Mr. Bulger?

The government has been in engaged in a public relations campaign, selectively disseminating carefully crafted information to promote their message for decades. Some in the local media have benefited financially from a cozy relationship with the government and have been willing to simply regurgitate the government’s story line. Rather than challenging the government and testing the veracity of the information that is hand-fed to the public, we have seen countless examples of media rubber-stamping the government’s press releases and financially benefiting from the “Bulger franchise.” The threat to the truth is that a casual reader of the media reports may assume that the reports are factually accurate and overlook the real tragedy that this saga has inflicted upon our fellow citizens. As a trial lawyer, it is imperative that one never accept secondhand information as fact. That is the benefit of cross-examination and independent review. The popular recycled government jargon is that James Bulger was an informant, John Connolly was a rogue agent, and the DOJ bears no responsibility for the damage they have inflicted on the victims’ families. This hand-fed script would have had a chance to begin to be dispelled if the litigation and trial had been televised. Unfortunately, the Federal Court does not allow television or cameras in the courtroom, and in consequence, the details of the case did not receive enough national attention. I knew little about [the film’s producers] Joe Berlinger and Caroline Suh, but my research supported that the director [Joe Berlinger] was serious, intellectually honest, and unbiased. There were great risks providing such extensive and unique access to Joe [Berlinger] and I did not know what approach he would take to the documentary. After meeting him, I was confident that regardless of whether the documentary reflected favorably or negatively about our positions and cause, the film would be fair. It was important for James Bulger, J.W. Carney Jr., and myself — for the community, the public, and a national audience to understand the depth of corruption that existed in law enforcement and exists to this day. This education is important so our public can be inspired to put aside the sensational marketing and propaganda that has been promoted by those with a financial interest and instead engage in their own independent research and arrive at their own unbiased opinions and conclusions. It doesn’t matter to me what people conclude about any of the issues. The important principle is that the public fairly be allowed to receive and examine the truthful information and arrive at their own opinions without a biased filter distorting the truth.

Do you believe the demise of certain people or the elapse of certain statutes of limitation contributed to when Mr. Bulger was finally located and arrested?

James Bulger ruled the Boston underworld for over two and one half decades and he asserted that the DOJ and its prosecutors, including Jeremiah O’Sullivan, promised him that they would never prosecute him for his crimes while O’Sullivan was in charge. O’Sullivan was true to his word and while O’Sullivan was the chief prosecutor in Boston, Bulger was never charged with any crime, not even a misdemeanor. Bulger left Boston and spent 16 years in the same place, engaged in the same habits, and the DOJ still hasn¹t provided any evidence that they attempted to find James Bulger until his arrest. In 1995, when the FBI and DOJ’s misconduct was uncovered, the FBI focused on hiding their own liability rather than pursuing Bulger. The FBI engaged in a self-promoted internal investigation of their office and agents, concluding with a filed report entitled the “Prouty Report.” The Prouty Report found no prosecutable criminal conduct by any of their agents and the report was summarily characterized as a “whitewash.” Similarly, the DOJ sent special prosecutor John Durham to Boston to conduct an internal investigation. It became clear that government corruption was rampant, dating back to Hoover through the present. Dozens of law enforcement [personnel], DOJ employees — including attorneys — and known murderers escaped scrutiny and prosecution. Over a decade later, the promised Durham Report outlining the corruption still has not been delivered. Congress conducted hearings and submitted a report entitled “Everything Secret Degenerates,” finding that the DOJ’s conduct was replete with corruption. The DOJ provided outrageous deals to murderers to convict and imprison former FBI agent John Connolly because Connolly threatened to expose the DOJ as an active participant in teaming with murderers to meet the government’s other law enforcement objectives. When the DOJ provided these reprehensible deals James Bulger was an afterthought and most thought he would never be found. The arrangements were made to protect and cover up the DOJ’s own liability and to silence Connolly. Just two years after former Strike Force Chief Jeremiah O’Sullivan died, the government coincidentally “found” James Bulger in the exact spot he had been at for 16 years. Most agents, lawyers, and other DOJ employees who had escaped scrutiny had long since retired, died, received immunity, or were susceptible to poor memory.

Could you shed any light on why Mr. Bulger didn’t take the witness stand?

The Court precluded James Bulger from testifying about the agreement he had with federal officials relative to their promise not to prosecute him. The promise was not made in exchange for information from Bulger, rather, and more provocatively, James Bulger’s success was of great value to the DOJ and Strike Force prosecutor, Jeremiah O’Sullivan. The defense listed dozens of witnesses including high-ranking DOJ officials that we intended to call to testify to corroborate this arrangement. The United States Attorney’s Office vigorously opposed this inquiry and objected to us calling these witnesses to testify under oath. The United States Attorney’s Office also fought to prevent James Bulger from discussing and raising this arrangement as a defense at trial. When the Court agreed with the prosecutor’s position and held that James Bulger could not present his defense, we realized the ruling would allow the government to continue to shield former DOJ employees from providing testimony under oath and would unfairly limit James Bulger’s
direct testimony. This deprived Bulger of the right to testify completely and truthfully. James Bulger believed this scenario rendered his trial a “sham.”

Had your team considered having Governors Dukakis or Weld summoned or deposed?

Former Governor and former United States Attorney William Weld was listed on our witness list. The Court’s ruling prevented the defense the ability to call Mr. Weld as a witness at James Bulger’s trial.

In your opinion, did the completion of the Big Dig mark the end of unassailable corruption and organized crime in Massachusetts?

Organized crime, the Top Echelon Informant program, and government corruption are not unique to Massachusetts. As long as some individuals who are charged with being custodians of the people’s power convert that power to their own personal use to satisfy their vices, corruption will continue to exist.

Do you see parallels to the behavior of the FBI and DOJ (in relation to Mr. Bulger and organized crime) and the recent revelations about the NSA?

The genesis of these scandals dates back to before Plato. There is no governing or prosecuting body that has authority over the DOJ. Without safeguards, history will continually repeat itself. I always find Juvenal’s quote to be most apt: Quis custodiet ipsos custodes? often translated as “who will guard the guards themselves?”

Aside from time he spent out on the tip of the Cape, are you aware of activities, social or otherwise, that Mr. Bulger may have engaged in nearer to the Vineyard or on it?

Yes. [Mr. Brennan made no further comment].

“Whitey: USA v. James J. Bulger” will be shown at the Chilmark Community Center at 8 pm on Saturday, March 15, and at the Chilmark School at 11:45 am on Sunday, March 16. Mr. Brennan will be in attendance at both showings as well as Steve Davis, the brother of a murder victim. For tickets and more information, call 508-645-9599 or visit