THE BLOG
05/10/2013 05:54 pm ET | Updated Jul 10, 2013

Licensing Crimes

The upcoming federal trial in Boston, Massachusetts of James "Whitey" Bulger for murder, extortion, racketeering, and conspiracy once again raises the question of how far prosecutors and police can go in authorizing private citizens to violate the law or to excuse violations once committed. One of Bulger's principal defenses is that the federal prosecutor gave him immunity from prosecution for past and future crimes. The claim may seem far-fetched: can a person be given immunity from prosecution for past murders? Can a person be given immunity for future murders? Apart from being granted immunity, can a person ever be legally authorized by a government official to engage in criminal conduct?

This is a tricky and controversial area of criminal law; the rules are not clear and the lines are fuzzy. To be sure, the operation of criminal law creates several tensions. First, there is the tension between making people pay for their crimes, and excusing their crimes when they help officials catch more criminals and maybe more dangerous ones. Second, there is the tension between making people accountable for their crimes when they are blameworthy -- this is the requirement of a culpable mental state, or mens rea -- and excusing criminal liability when people mistakenly believe that they did nothing wrong. The subject of mistakes in criminal law is complex, largely because of the so-called distinction between mistakes of fact and mistakes of law.

Granting criminals immunity for assisting law enforcement officials in convicting dangerous criminals is a well-established, however controversial practice. One of the most celebrated examples is the immunity given to Sammy "The Bull" Gravano in exchange for his cooperation with the government in convicting John Gotti, godfather of the Gambino crime family. Gravano surreptitiously recorded over over 100 hours of racketeering conversations with Gotti and testified against him at trial. Gravano had confessed to nineteen murders, but received immunity anyway to convict Gotti.

Although extreme, Gravano's case is similar to Bulger's. Bulger was a former organized crime boss who was an informant for the FBI in its efforts to prosecute Boston's notorious Patriarca crime family. Bulger has been styled a local folk-hero dedicated to protecting the neighborhood from drugs and gambling. As an informant, Bulger assisted the FBI's investigation, but also is reported to have killed dozens of people. The present indictment against Bulger charges him with 19 murders. It is for these and other crimes that he claims he was given immunity. And Bulger wants to have the jury, not the judge, determine this question. However, the trial judge recently ruled that the issue of immunity is for the judge to decide, not the jury.

But even if the court determines that Bulger's claim of immunity turns out to be false, could Bulger still prevail if he honestly believed that he had immunity? Or if he honestly believed that he was authorized by government officials to engage in criminal conduct? These are more difficult questions because they address more closely the issue of a person's mental culpability, which is the core concept in criminal law.

In fact, there are a scattering of doctrines and defenses that attempt to protect a defendant who commits crimes but seeks an excuse. For example, the traditional entrapment defense excuses criminal conduct if the defendant has been seduced by government officials to commit the crime and the defendant is proved not to have had a criminal disposition prior to the government's solicitation. Other variations of entrapment would excuse criminal conduct if a defendant engaged in criminal conduct in reliance on a government official's representation that such conduct was lawful, or if the defendant was authorized by a government official to engage in the criminal conduct and the official had the power to authorize such conduct.

One of the most famous cases describing this type of public authority defense is the prosecution of the Watergate burglars for breaking into a doctor's office and attempting to steal medical records that would embarrass Daniel Ellsberg, the source of the leak of the Pentagon Papers. The burglars, Bernard Barker and Eugenio Martinez, were former covert agents for the CIA who were recruited for the operation by E. Howard Hunt, a career agent for the CIA who was a member of a unit in the White House called "Room 16" that was established to investigate leaks of classified information. Barker was given an unlisted White House telephone number, received notes on White House stationary, and met Hunt in the Executive Office Building. Barker was told that he was working for an organization with greater jurisdiction than the FBI and CIA, and that he was to effectuate a surreptitious entry to obtain national security information on a traitor to this country who was passing classified information to the Soviet Embassy.

Barker and Martinez's conviction for conspiracy to violate constitutional rights was reversed by the Circuit Court of Appeals for the District of Columbia. The court found that the trial judge erred by not instructing the jury that the defendants' action could be excused if they reasonably and in good faith relied on Hunt's apparent legal authority to order the operation. A reasonable mistake as to legal authority might excuse criminal conduct.

Could Bulger raise a similar defense? It would depend on what kind of proof Bulger might offer to support his claimed excuse. For example, Bulger could testify that he believed he received immunity from the government, that his belief was reasonable, and that the immunity covered the crimes he committed. However, if the judge instructs the jury that Bulger did not receive immunity, the claim probably would fail. Alternatively, Bulger could claim that he reasonably believed that he was authorized by government officials to engage in criminal conduct. He might be able to prove that he served as a government informant for several years, and that he committed crimes during this time with the knowledge and apparent acquiesence of government officials.

Of course, if Bulger seeks to prove these facts through his own testimony, he would face withering cross-examination about his crimes, including murders, extortions, and racketeering activity. That he fled the jurisdiction after learning of his indictment in 1994, and remained a fugitive for 16 years will be used to prove his consciousness of his guilt.

Bulger's trial may not offer much clarity on the legal issue of a person's ability to commit crimes at the behest of the government and be excused from criminal liability. On the other hand, given Bulger's fame or infamy, the trial is certain to provide good theater.

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