BOSTON (CBS) – Whitey Bulger announced Friday that he would not testify in his own defense at his trial.
WBZ-TV legal analyst and former Middlesex DA Gerry Leone, who is now a partner at Nixon Peabody LLP, spoke to WBZ-TV’s David Wade about Bulger’s decision.
David Wade: Are you surprised by this?
Gerry Leone: In one respect I’m surprised David, and in another respect I’m not. I’m surprised because, frankly, I thought that Whitey Bulger would take the stand, get his messaging out, tell his story, and not make himself subject to cross examination, which legally he can’t do but personally he could. But in another respect, I’m not surprised. He sat there and watched Brian Kelly do a great job with cross examination and embarrassing (Robert Fitzpatrick, a former assistant special agent in charge of the FBI’s Boston office), and the last thing that Bulger wants is to go out embarrassed in a public courtroom.
Wade: Gerry, what do you mean by “just not make himself available for cross examination?” Just simply not answer the questions?
Leone: That’s what I thought. I thought he would take the stand, he would message, he would get his idea, get his story out, and then he’d cross his arms and not answer any questions. Now, legally you cant do that because all his testimony would be stricken. But the fact of the matter is you could never walk that elephant back out of the courtroom, and if he did that he would be able to tell his story publicly.
Wade: And I think the people that are surprised that he didn’t take the stand are surprised because at this point — 83 years old, mountain of evidence against him — it doesn’t seem like he has much to lose.
Leone: Well he’s got an ego. And he’s got a legacy in his mind. And he doesn’t want to be embarrassed to the extent that he would be subject to a mountain of material for cross examination and impeachment, and Brian Kelly would have done that very effectively. He may have thought twice about subjecting himself to that.
Wade: So I know there’s been this thought that at one point, you know, there was this romanticized image of Whitey Bulger back in the day keeping the drugs out of South Boston. Since then, we’ve realized that that was really kind of a crock. So you think that he thought that in his mind there’s no way I’m bringing that image back, so why bother?
Leone: Sure, and I think, you know, he tried to perpetuate that romanticism. I think what he did when he made the statement about giving the forfeited money to the victims’ families, I think what he was doing was perpetuating this Robin Hood-theme. And he used to spread that Robin Hood-theme in and around the South Boston community that somehow he is going to rob from the rich, the bad behavior-ed government, and give to the poor.
Wade: And just legally, Gerry, he brought up in front of the judge, not in front of the jury, but in front of the judge, the whole “trial was a sham” because he was not able to make his immunity claim that supposedly Jeremiah O’Sullivan gave him this years ago, so it sounds like he’s known that since the beginning. Do you think the decision was made a long time ago that he was not going to testify?
Leone: No, I don’t think the decision was made a long time ago. it’s been a long trial, there’s been an ebb and flow, and I think he just made up his mind at the end that he wasn’t going to subject himself to what would have been a blistering cross examination. But he took the opportunity publicly to again talk about one of the three themes that they developed over the course of the trial: he wasn’t an informant, he didn’t kill women, but he was given immunity. And he took that opportunity to take a shot at the court for taking that defense away from him.