Joe Berlinger Makes Closing Statements on Whitey: United States of America V. James J. Bulger

The director of Whitey: United States of America V. James J. Bulger says the defense can never rest.

Joe Berlinger doesn’t know where he got his sense of injustice, but he’s been letting that inner compass dictate where he goes as a film director. Berlinger shines his camera on all kinds of injustice, whether it is the Hollywood injustice that brought Blair Witch 2 to screens or the cruel injustice that the constitutions of each individual member of Metallica are stronger than entire party college towns.

Starting with the film Paradise Lost, which documented the murder trial of an elderly man charged with killing his brother, Berlinger has been shining an uncompromising light on the justice system to reveal systemic injustice and inequity. As the late great Richard Pryor once said “You go down there looking for justice; that’s what you find: just us.”

Joe Berlinger doesn’t run away from a fight. In 2009, Berlinger was chased by Chevron Corporation who went to court to subpoena outtakes from his oily exposé Crude. Berlinger spent over a million dollars in legal fees fighting for future of documentary movies makers everywhere, but ultimately he had to turn over the footage on orders of a federal judge.

Berlinger just wants to tell the truth. In films like West Memphis 3 and Some Kind of Monster, and in his television work for Al-Jazeera, The Oprah Network and Sundance, the director cuts through the usual bullshit to present objective evidence that raises more questions than can ever be answered in cross-examination.

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Joe Berlinger’s latest documentary, Whitey: United States of America V. James J. Bulger, focuses the lens on one of the legends of American gangster history, the Boston mob boss James “Whitey” Bulger. After 16 years on the lam, the feds caught up with their Public Enemy Number 1 (with a bullet) and convicted him on racketeering and 11 murder charges. But Berlinger’s film didn’t show the Whitey Bulger that had become a gangster icon, the one that Jack Nicholson brought to the screen in Martin Scorsese’s The Departed, the one Johnny Depp will play in Black Mass. Berlinger showed the racketeer as the victim of a federal railroading.

Berlinger doesn’t make excuses for Bulger, he doesn’t paint him with heroic flourishes. Berlinger just showed the truth. And the truth was that no matter what Bulger’s crimes, the court owed him a fair trial. One that looked at all the culprits, equally, fairly and blindly. The culprits in the case were cops, federal cops who looked the other way while Bulger rose to prominence on the streets of Boston where the Irish mobs fought the Italian “mafia.” The Feds took sides. They aided and abetted and when Whitey went to trial their collusion was covered up.

In uncovering the truth behind the truth, all Berlinger wants to do is tell the whole truth and nothing but the truth in hopes he can bring equal justice for all.

Den of Geek: What drew you specifically to Whitey Bulger?

Joe Berlinger: Interestingly, I’ve actually been fascinated by Whitey for a long time and never thought about making a documentary about him. The fascination was around before the desire to make a movie. Particularly as a true crime person, Brother’s Keeper, Paradise Lost and even Crude, I’ve involved myself with films about the legal system. I have a television series on Al Jazeera called The System which is very involved in the criminal justice system. True Crime and the criminal justice system has long been a preoccupation of mine and Bulger’s story s an irresistible narrative. I mean a guy on top of Boston’s underworld without even being stopped for so much as a traffic ticket. Gets tipped off and goes on the lam. Potentially I thought he would never be caught and brought back.

The other thing that has long fascinated me about the story is how he has passed into a kind of cultural iconography. I can’t think of a contemporary criminal who’s been so mythologized as Whitey Bulger. Being the basis of a highly fictional account in The Departed, which bares very little to reality of who he is, what he did. A dozen books have been written, TV shows, there are two other movies in the works. Johnny Depp, as I’m sure you know, is shooting The Black Mass movie. Matt Damon and Ben Affleck are doing one.

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How early into the court process did you get involved with the filming?

For years I’ve been fascinated but never thought I had anything to add because of this glut of literature that has been written about the guy. Then he was arrested, which caught me by surprise because I thought the FBI had given him a free pass and that it would be too embarrassing to too many people to bring him back. When a trial date was announced in 2012, in November, that he would actually stand trial in what would probably be the biggest legal proceeding in Massachusetts since Sacco and Vanzetti, that’s when I said now. With the promise of a trial who would reveal who he was an how he operated, I thought here’s an opportunity to separate the man from the myth and jump into the fray, to use the trial as a springboard to tell the true story.

It became clear to me that the trial was going to be a very narrowly focused inquiry into Bulger’s existence. Just before the trial began Judge Casper determined that Bulger was not allowed to present his immunity defense. He claimed he had immunity from prosecution not because he was an informant but because made a deal to protect the life of then-federal prosecutor Jeremiah O’Sullivan. A lot of witnesses got struck from the defense list. The trial was very limited in exploring what made Bulger possible. That informed the mission of the film, which was to raise questions that the trial did not allow to be aired and that frankly a lot of the local media didn’t seem to be too curious about.

Was the news media too concerned with the gangster legend to report the truth?

Not everyone, but the local media, by and large, treated the question of whether or not he was an informant and the question of his immunity defense as absurd sideshows. I viewed them as central to the question of understanding how Whitey Bulger was possible. Should we believe the conventional narrative or not? The conventional narrative has some holes in it. Bulger should have been given a richer fuller opportunity to present whatever defense he wanted to present in the hopes that a bigger picture of the corruption could have emerged.

Was Whitey Bulger railroaded?

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I am no apologist for James “Whitey” Bulger. I am not taking his side or believe he belongs anywhere other than where he is, in prison. He’s a brutal killer and he got what he deserved. But I’m an advocate for the truth. I think the families of Bulger’s victims have been victimized not just by the death of their loved ones but by a government that doesn’t want them to know the truth.

You get close to your subjects, one of them died in the course of the filming. After the killing, did you feel you were being watched?

Give my past experiences, particularly when I made the film Crude and was sued by Chevron and that resulted in a private detective taking pictures of my kid getting off a school bus and given my subject matter, I always feel I’m being watched.

I don’t want to give the impression that Berlinger seems at all like a paranoid, so I would like to point out that he said the last part with a self-conscious giggle. He knew full well what that would look like in print.

I don’t necessarily think that the killing of Steven Rakes raised my concerns about that, nor do I think that the government was involved in that death. As an outsider I was fascinated by what I observed as the importance of the killing of Stephen Rakes. I do believe the official story, that there’s a guy in custody right now who had a shady business dealing with Steven Rakes and instead of paying him a debt that he owed this the guy decided to sprinkle cyanide and take care of his debt that way. When news of his death hit the court house, observers at the trial, reporters, victims’ family members, a lot of people debating with equal possibilities that it was either government interests or Bulger interests thank knocked Rakes off. That killed this guy. People were debating as a real possibility that the government had a hand in it. That is demonstrative of the depth of the loss of faith in the institutions of justice.

How was it possible the Bulger gang could have been responsible for so many deaths while under the watchful eye of the FBI?

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The conventional story that it’s all John Connolly, I don’t think Connolly’s a good guy necessarily, but he’s been scapegoated for much of the responsibility. Victims’ family members need closure. They need to be compensated for so many people who died. The federal government has in civil trials fought tooth and nail from accepting responsibility. I think that’s wrong.

Who do you think subverts the law more often, criminals or law enforcement … or Metallica?

I would say Metallica is the least of the three. Look, I’ve made a lot of films that are critical of people who are in power. The System on Al Jazeera looks into institutional problems that lead to wrongful convictions, from prosecutorial misconduct to false confessions to faulty witness identifications. My feeling is that, by and large, people in law enforcement, whether they’re police or district attorneys or the Federal Bureau of Investigation, the vast majority of people who  wear that badge are in it for the right reason and do the right thing. They are there to protect us in all the ways you want to believe. But it just takes a few bad apples, as the saying goes.

We live in a world where the justice system and law enforcement is run by human beings. Human beings, at best, make mistakes and sometimes are corrupted and it happens. I think it’s the role of journalists to shine a light on corruption. That’s the role of free press in this country. I don’t want to generalize and say law enforcement is corrupt, because I don’t belive that. The system often works and the police often do the right things. The FBI often acts heroically. But we’ve seen that it doesn’t always happen that way. Transparency is what is needed. In this case we saw the antithesis of transparency. The citizens of Massachusetts and citizens of United States of America and, most importantly, the family members who lost victims deserve to know the full unfettered truth.

You also went after crude oil in a protracted shooting. How do you pick your battles?

Without sounding self-important or cheesy, I like giving a voice to the voiceless. Whether in Brother’s Keeper, a semiliterate dairy farming brother who the community thought was innocent. He didn’t understand the statement he was signing. I’m uniquely attuned, for whatever reason, to abuses withing the justice system. Crude kind of falls out of that, even though it’s a legal situation. My preoccupation with the justice system is because I think the most core American value we have, what separates us from other countries, is our personal liberties, our belief in the sanctity of personal liberties. The justice system takes that away by falsely convicting you. When the FBI gets to bed with criminals and makes sweeping decisions on who should live and who should die because they had a national agenda to bring down the mob, the Italian mafia. Saying we’re going to look the other way while they let the Irish mobsters run roughshod over Boston and even let them kill. That a breaching of our most fundamental America value, that we each are here to determine our own destinies.

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When the criminal justice system falsely incarcerates people or secretly empowers some people to kill because they’re trying to get other people, the government shouldn’t be in the business of deciding who should live or die. The justice system needs to be blind and only convict those who deserve to be convicted. Generally speaking all of my work focuses on that.

Crude was different. It was about pollution and saw people with all sorts of illnesses that were in a part of a world that should have been paradise but was a disgusting mess. I can’t tell you whether Chevron had the law on its side or not. I wanted to make a film about the larger world issue of what we in society are doing to the environment. The Amazon is lungs of the earth. It’s a place with incredible devastation that shouldn’t be there. What we were doing to indigenous people, whose way of life was about sustainability, knowledge we should be cherishing instead of extinguishing. I don’t know where my sense of injustice developed but it did.

What are the biggest differences between your TV documentary work and your film work? Subject matter or freedom?

With the exception of The System, which is a pretty serious attempt to do what I do in my long format on television, a lot of my TV work was more celebrity oriented. I was one of the creators of Iconoclasts, which was on the Sundance Channel. I think there’s depth to the series, so it’s not light and fluffy. It’s taking two celebrities from different worlds and spending a couple days together wondering about life and see a side we don’t normally see. I did Master Class for the Oprah Winfrey Network. The Paradise Lost series was three very serious films over two decades that are feature length documentaries that were made for television. Those movies got three people out of prison so that’s the most serious work I’ve ever done. More instant gratification because sometimes these films take a long time to make and get out.

The Whitey film I made in record time. I didn’t start shooting the trial until June of last year and we actually had a premiere at Sundance in January so that was a record amount of time for a film of this length and depth.

You were documenting widespread corruption in the federal police force. Did that make the FBI Surveillance footage you showed in the film hard to get?

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All that FBI Surveillance footage was submitted to the trial, so that footage wasn’t that hard to come by. Nobody was allowed to sit down with Whitey Bulger. He was off limits. The U.S. Attorney’s office disallowed any interviews with him during the trial. They were invoking a local rule in Boston that allows them to prevent interviews with the subject of a trial for fear of the media polluting the jurors. To me it’s a redundant rule because the jurors aren’t allowed to watch media anyway.

One of the achievement of the film, for those who are interested in all things Bulger, this is the first and only time we’ve ever heard from Whitey Bulger. I worked all summer on my relationship with attorneys and convinced them to allow me to film a conversation between Jay Carney and Whitey Bulger. Even though he’s the subject of a dozen books and multiple movies, everyone is speaking for him but he’s never really spoken for himself.

For Bulger buffs the film is historic because it has Whitey’s voice in it.

Do you think justice was served?

On the most basic level, Bulger was finally captured. He was hiding in plain sight and it wasn’t until a new generation of FBI decided enough is enough, let’s bring him in. You have an 83 year old man who’s lived a full life of crime being sentenced to two life sentences. To me it’s somewhat of a pyrrhic victory. Basically Whitey got away with it. I hope I live until I’m 83. 

There is gainful evidence to show that there was cause to prosecute him early on. There was this famous Race Fix Memo where Bulger and Flemi were removed from the indictment because, either he was an informant or he was being protected. In either case, if there was an opportunity to bring these guys in that was thwarted in the late 70s, all of these victims, potentially because I can’t if they would necessarily be alive today, but they wouldn’t have been killed by Bulger.

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