02/20/2013 01:19 pm ET Updated Apr 22, 2013

Whitey Bulger: Murder Contracts and Rats

As a former prosecutor, I tried some strange criminal cases, but I've never come across one that involves the question of whether a mass-murdering mobster had a contract with the government to kill. The issue is called immunity.

I sat front and center in the jury box. The courtroom was jam-packed for this unprecedented pretrial hearing in the government's case against Boston mobster James "Whitey" Bulger, who has been indicted for committing nineteen murders during his reign of terror throughout the 1970s and '80s. The highly anticipated trial is scheduled for June.

The Assistant U.S. Attorney argued before Judge Sterns that Bulger's immunity claim is a question of law that must be decided by the judge, who should hold a pretrial hearing to resolve this outlandish claim sooner rather than later. He denied that former U.S. Attorney Jeremiah O'Sullivan, now conveniently deceased, granted Bulger immunity to commit nineteen murders. He argued that an Assistant U.S. Attorney cannot grant anyone authority to kill fellow Americans. Further, under the general principles of contract law, any contract that contemplates murder would be void as an illegal contract.

A contract encompassing multiple murders -- sounds preposterous, but is it?

I studied the team of Assistant U.S. Attorneys at the government's table with their leader, Carmen Ortiz, sitting behind them. Perhaps these lawyers should take a hard look at New England's sordid history of law enforcement officials cutting deals with men like Bulger, and then ignoring their murder and mayhem. Let's begin in 1965 when two top-echelon federal government informants murdered Teddy Deegan, a fellow American, and the Justice Department allowed two innocent men to be wrongly convicted and sentenced to death row. The Justice Department and FBI stood by for the next 34 years as those innocent men languished in prison. I'd call that an illegal murder contract sanctioned by the government. Here's another one: Bulger's former FBI handler, John Connelly, was convicted of second-degree murder for his involvement in the killing of fellow American John Callahan in 1982. Connolly maintains that he was the Department of Justice's fall guy. Former FBI agents claim that the government corruption in that deal extended beyond the FBI to the U.S. Attorney's Office in Boston, and all the way to the Department of Justice in Washington.

Defense attorney J.W. Carney argued that Bulger's immunity claim must be decided by a jury, and to remove Bulger's defense of immunity would deny him his constitutional right to a fair trial. In other words, let him take the stand and talk. The strategy would be to expose the immunity claim and "illegal contract" before the jury along with decades of corrupt government deals with notorious gangsters. Like the O.J. Simpson case, the defense would be putting the government on trial, and raising the possibility that illegal contracts contemplating murder really do exist between certain high-level mobsters and the government.

Just when I thought the case couldn't get anymore intriguing, it took another strange turn. Outside the courthouse, Carney denied that Bulger was even an informant for the government! How can that be true when evidence exists that Bulger helped the Feds take down the Italian mob in the North End, which paved the way for his criminal empire? It sounds like Bulger is calling the shots because he doesn't want to be called a rat. Kudos to him for attempting to be a loyal and upstanding mobster, but doesn't this undermine his entire claim of immunity?

As I walked away from the courthouse that day, thinking about contracts for murder, immunity, and Bulger's status as a non-rat, I couldn't help but sympathize with the families and friends of the victims. Many sat through yet another pretrial hearing, frustration bleeding across their collective faces -- and that was not contrived.

How long do they have to wait for justice to be served?