Everyone’s Still Wondering Whether Whitey Will Testify

It's one day into Whitey Bulger's defense and we still don't know the answer.

One day into Whitey Bulger’s defense and we still have no answer to the most pressing question on reporters’ minds: Will Bulger testify?

The origins of this possibility, which would otherwise have seemed fairly absurd, date to a pretrial proceeding at which his lawyers said he planned to take the stand and assert that he’d been offered immunity for his crimes. Talk of it died down when the judge ruled he couldn’t use that defense, but it never went away, especially given the reports showing that he remained set on proving, in particular, that he wasn’t a federal informant and that he didn’t commit two of the 19 murders for which he’s charged: the two committed with female victims. On Friday, Bulger’s lawyer still wouldn’t say definitively whether his client would testify.

But there’s a certain logic in favor of Bulger taking the stand, as laid out by legal experts who spoke to both the Associated Press and the Boston Herald, and it goes like this:

Bulger is 83-years-old, and he’s likely to be found guilty of enough crimes to put him away for the remainder of his life. His reputation is all he has left. As Boston attorney Martin Weinberg speculated with the AP, Bulger might accept that he’ll be found guilty of several murders to give his denials of a choice few more weight:

“It makes it more likely for him to testify if his objectives are something other than a complete acquittal because he can admit to things that other defendants couldn’t and attempt to persuade a jury that, `You heard what I admitted to, please respect those specific areas as to which I deny guilt.”‘

The straight-forward argument against his testifying is that he would have to undergo a cross-examination from the government, which could keep him up there for days describing his many misdeeds and open him up to new ones—the AP mentions the evidence that he ratted out his accomplices when he was charged with several bank robberies in the ’50s.

Then there’s the more Machiavellian argument against his testifying,  advanced by Slate’s Seth Stevenson. This one suggests that he’d deny the prosecutors a chance that they clearly relish. Stevenson recaps the lawyers’ discussions on Friday afternoon when Bulger’s lawyer, J.W. Carney Jr. was asked whether Bulger would testify:

“I don’t know the answer,” says Carney.

“I do, your honor,” pipes up prosecutor Kelly, quite cheekily. Kelly seems confident that Whitey won’t dare open his mouth and face the government’s grilling.

Kelly’s baiting Whitey. The prosecutor would love nothing more than to cap off the trial with an epic cross-examination. In fact, I think we’d all like that. But I’m prepared to be disappointed. Whitey always wants to call the shots, and clamming up may be his final power play.

That seems a little counter-intuitive. Wouldn’t his power-play be testifying despite the damage it does to his legal defense because he serves a higher purpose—his personal defense? However you see it, it seems like testify or no, we’re always inclined to read into Whitey’s actions the calculated moves of a mastermind. That, at least, is the remnant of his reputation that will stick when all this is over and done with.