In any criminal trial, the Defendant’s right to present a defense is paramount, yet not absolute. Any time the defense is affirmative (in other words, “yes, I committed that criminal act, but here is my justification, excuse, or exemption from prosecution…”) the judge is faced with complicated issues, one of the most important being the Defendant’s right to due process of law. In the Bulger case, if he is convicted on any one of the 32 counts of the indictment, his main argument on appeal is likely to be that he was denied his opportunity to present his “immunity” defense to the jury, which would have allowed him to argue that he had an agreement with Assistant United States Atttorney Jeremiah O’Sullivan (who died in 2009) which granted him immunity from prosecution for all crimes, including murder.
U.S. District Court Judge Denise Casper may have been correct in finding that one can’t be granted immunity from a murder prosecution, but her decision leaves the victims, their families, and everyone else who was negatively impacted by the corrupt Bulger- FBI relationship without the answers they’ve been desperately seeking for decades.
If the judge allowed the presentation of an immunity defense, dozens of high-ranking public officials, including former Governor William Weld and U.S. District Court Judge would likely have been called to testify, exposing them to a vigorous cross-examination by Jay Carney and Hank Brennan which undoubtedly would have provided at least some insight into what was actually taking place during those dark days in the Commonwealth. Further, had Bulger been able to pursue this defense theory, he would have taken the stand, and likely provided a tell-all, at least from his perspective. The public is well-aware of the torment Bulger put so many through during the 70’s, 80’s, and early 90’s… but allowing him to present the defense of his choice might have provided detailed answers about who else was involved, and how deep this corruption really went.
One of the judge’s main roles is to act as a gatekeeper, making sure that the jury is presented with only the relevant and fair evidence on both sides. But when an 84 year old man is on trial for his life, almost certain to face execution, with the mountains of evidence against him, why not let him try to make his own case? If ever the public deserved to get the full story, or at least as much of it as could be uncovered, this is that case and forum. Now, the issue will be brought up on appeal, costs hundreds of thousands of dollars and years of the federal court’s resources, and we are still left with more questions than answers. The immunity defense would have satisfied the Defendant’s due process claim and provided long overdo answers to the public. The only “winners” in having the immunity defense theory barred was the Department of Justice and all of the corrupt officials who were involved, the extent of which may forever remain unknown.