THE BLOG
08/27/2013 11:40 am ET Updated Oct 27, 2013

Top 10 Unanswered Questions About the Whitey Bulger Trial

1. What are some of the most significant takeaways from the trial?

Too many to list. However, if I were to humbly suggest the number one take-away it would be that the members of the jury took their oath very seriously. In the midst of hearing about one tragedy after another, listening to pathological liars whose testimony made them "want to take a shower" and watching life imitate fiction in a surreal fashion, the jury honored the constitution and our criminal justice system. This was a gestalt case for everyone except the jury. We should all be proud of the way the jury comported itself.

2. Who won?

There is a compelling argument that everyone won something. The U.S. Attorney's office secured 30-plus convictions, in some respects salvaging a modicum of respect for the system. Whitey and his lawyers not only exposed but completely undressed the unsavory and amoral corruption that was rampant in the FBI and Department of Justice during Whitey's reign in Boston. However, the words of legendary Massachusetts Public Defender Larry McGuire ring true: "Nobody ever wins these cases." Put another way, justice is rarely a zero sum game, and it certainly was not in this case.

3. Why no death penalty?

To answer this question, you need to lay two timelines next to each other: the history of valid death penalty laws in the United States and the time periods during which Whitey committed the crimes he was convicted of:

1972: U.S. Supreme Court declares all existing death penalty statues unconstitutional in Furman v. Georgia

1973-1985: All 19 homicides occurred

1988: First post-Furman federal statute that satisfied Furman

1994: Second such statute

1996: Third such statute

In a nutshell, at the time of the killings that were the subject of the federal indictments, there was no valid federal death penalty law on the books.

4. What about Massachusetts state court, Oklahoma and Florida?

Whitey is wanted in two of the most execution friendly states in the nation, Oklahoma and Florida. Both of which have and had at the time of the homicides that Whitey is alleged to have been involved with valid capital punishment statutes. He also could be prosecuted independently in Massachusetts for any predicate acts "not proven" or other crimes that he was either acquitted of or convicted of. The bedrock constitutional principle of double jeopardy doesn't apply to "separate sovereigns," and the federal courts and individual states are considered just that under the law.

Whether any of the three prosecutorial authorities will bother is another question altogether. Notwithstanding legitimate issues of closure and justice, I have yet to be persuaded that it would be worth the candle.

5. How did the lawyers do?

By all accounts, the prosecutors did a fine job. I followed the performance of defense attorneys Hank Brennan and Jay Carney more closely. Having been dealt a very challenging hand, they did an outstanding job and, like the jury, truly honored the Constitution with their efforts. The defense team's post-game response, that they felt like they had accomplished most of what they set out to do, (a combination of realism and the specific goals of their client) was far from grandstanding or wishful thinking; it was the truth.

6. What was the best moment in the trial?

In a trial made for Hollywood, there was some extraordinary drama and subtext. The exchanges between Whitey and his former lieutenant will receive major play in the movies. However, from a legal standpoint, the testimony of Desi Sideropoulos, assistant to the special agents in charge of the FBI's Boston office for 50 years, earns my vote. Her testimony, which was unexpected until the defense discovered her, was the cherry on top of the sundae, outing the shameful conduct by the FBI beyond what anyone ever imagined. And, make no mistake, there were two parties on trial: Whitey and the federal government.

7. Why didn't Whitey testify?

The talking heads were predicting he would, and everyone was eagerly anticipating the firestorm and more shocking revelations of government corruption. However, once the judge precluded Whitey from pursuing an immunity defense, he could no longer testify with any threshold of impunity. If he had been allowed to put on an immunity defense, his testimony would have jelled perfectly with that theory of defense.

8. Are there any good issues for appeal?

The touchstone of the appeal will involve the court precluding the immunity defense. Arguably, once that decision was made it also chilled Whitey's right to testify. The conventional speculation has been that this issue is dead in the water. Although I agree it will be an uphill battle because of the deference appellate courts pay to trial judges in discretionary decisions, the law on presenting an immunity defense is not nearly as black and white as most people think. The court's decision also directly impacted Whitey's right to present a defense, call certain witnesses, ask certain questions and his right to testify, rights all guaranteed, although not without some limitations, under the Fifth and Sixth Amendments.

A second appellate issue that might receive some traction is the judge's decision to limit witnesses or, in some cases, the scope of the topics that the defense could cover with those witnesses. There is also a related constitutional right to present a defense, the right for an accused to compel witnesses for the defense to come to court and testify. Again, the judge's game time decisions on this were discretionary calls entitled to deference; however, the right to put on a defense, with some narrow restrictions, is a sacred one with a rich, 200-year history.

Both issues will be a little tricky on appeal because of essentially a chicken-and-egg issue: For example, Whitey's own testimony ostensibly would have supported the immunity defense, but because he didn't actually testify, what information the appellate courts examine to determine if he was deprived of certain constitutional rights will be somewhat limited. In other words, without his testimony I don't know if it is possible to accurately and thoroughly assess the factual viability of an immunity defense.

9. What is Whitey going to get for a sentence?

Life plus a lot!

10. How long until this will really be over?

The cases and any other future cases brought against Whitey will outlast Whitey. If he dies before his direct appeal is finalized, there will be a lot of unhappy people out there, because at that point, Whitey's convictions will be vacated and the indictments will be dismissed.