Whitey Bulger’s Mouthpiece Takes a Stand

The First thing Whitey Bulger’s attorney, Hank Brennan, wanted to know before he started the interview was whether he was in the Den of Geek. I suspect that at heart, he is one. If you want a lawyer to defend you, a geek would be a good choice. A geek will study. A geek will obsess over minor details that the non-geek might miss. That’s not a bad thing to have on your side.

Hank Brennan was a Boston bar band musician before he got his law degree and he only got that so he could represent himself as an artist. He had no idea that once he started law school he’d have no time for bands. That doesn’t mean he gave up improvisation. He just took it to the courts. He keeps his harmonica in his pocket in the event he ever has to go to the wall for a client and gets himself locked up on a contempt charge, though.

Brennan isn’t offended by the term mouthpiece. He says he’s been called a lot of names in his years as a lawyer. I didn’t float the word shyster past him, though. Brennan talked about the law and movies about the law. The toughened defense attorney admits to feeling guilty about liking A Few Good Men, because it might label him a “bubble gum culture” fan.

“The cross examination, which is the heart of any trial, is so well orchestrated. There are some real classic law movies. The ones that get to the heart of what a trial lawyer does, those are the ones that get to me,” he says. He particularly cites Paul Newman in The Verdict.

Hank Brennan is James “Whitey” Bulger’s lawyer. He is working right now on appealing the Boston mob legend’s conviction on racketeering and 11 murder charges. A lot of that courtroom drama played out in director Joe Berlinger’s documentary Whitey: United States of America V. James J. Bulger. Brennan sat down with Den of Geek to talk about the documentary, Whitey Bulger, and the widespread corruption that blurs law enforcement.

DoG: How fair do you find the evidence presented in the documentary, Whitey: United States of America V. James J. Bulger?

Hank Brennan: I thought the documentary was an excellent summary of what happened in the trial. I think, unfortunately, most of the extraordinary evidence showing the systemic corruption the government drew to the trial. So the documentary unfortunately doesn’t reflect the depth of that corruption throughout the decade. But I thought the documentary itself was an excellent presentation.

There’s no doubt in my mind that we won the first round because what we’ve done is we’ve alerted the public that the legacy they tried to create really is a sham. I think that that trial was really just the first step: That the most important thing is that the public becomes aware of that corruption. The next step is to do something about it.

The jury found Bulger played a role in 11 murders and he was cleared of seven murders, stretching back to 1973. He also was found guilty of racketeering. Were you satisfied with your defense? Do you know anything now that would have changed your strategy? Do you rehash it in retrospect?

I don’t say this callously, but I wouldn’t have changed a thing. I think about it every day. I wake up in late hours of the night. I run my examination, strategy, function through my head regularly. But I’m pretty invested on working on the case because I’m Mr. Bulger’s attorney through the appeal so I typically work about 100 hours a week. That process will continue until the end of August so I had a lot of time to really think about the evidence, read the transcripts, be very critical about the whole process in a very different way than at trial.

As a man of law what do you think of the street code, gangster code of Omerta?

It’s been successful for generations. The fact that it allowed the Italian mafia not only did it thrive but to go on for such a considerable amount of time. As far as an organized crime standpoint, the government did have quite an ordeal fighting that entire concept.

How is the gangster code of silence like the attorney’s duty of confidentiality?

I wouldn’t want to draw an analysis between the two. It’s wholly different things. Attorney client privilege deals with applying an extraordinarily high level of tactical responsibility. As far as Omerta, you do have to be personally involved to say whether or not there’s a strong sense of morality or ethical nature to it. I couldn’t speak to that.

Who subverts the law more often, criminals or law enforcement?

Well, here’s what I said in the closing of the James Bulger trial. We expect that our criminals did their crime, because that’s what they inherently do. We don’t expect it from our law enforcement. Law enforcement has this great advantage of being the custodian for the people’s power. That makes them much more dangerous because, in reality, federal law enforcement officers, they don’t have any power. They’re just custodians of the peoples’ power, only they use it in a way that is adverse to the public, is dangerous and sometimes fatal. That is probably one of the greatest harms.

Do you think cameras in the courtroom help or harm the Justice system?

Cameras in the courtroom is essential. Without cameras in the courtroom, without television televising trials what happens is, anything can happen in the courtroom. What happens is filtered through the media that is covering it. If you have a media or someone in the media that may be biased for personal reasons, you get a very distorted picture of what happened.

In the Bulger case, I don’t think that the general public really understands the extent of the systemic corruption. That’s why Joe Berlinger felt it was so important. It was the first subject view, without taking a personal interest, of showing the absolute depravity that happened throughout law enforcement in the past forty years. And for that I’m grateful.

More specifically, do you think they help or hurt your client?

There were no cameras in the courtroom. There was no video in the courtroom.

How did the press coverage of the event, the legend that surrounds Whitey Bulger, affect the trial?

Much of what’s been said about James Bulger is myth. What happens is you have global media who’s interested in the old story of the myth because they may have their reputations staked on that myth or they might have a financial interest in the myth, whether they’re selling books or making profit. They have to perpetuate the myth. They’re going to continue to exacerbate that myth rather than report the facts. The real shame of it, what really troubles me is when you think about the role the media, and don’t get me wrong there was some great local coverage like David Frank and others, but you have a massive amount of the media who are invested financially because of the Bulger franchise, that they cease to be the watchdog of the federal government.

Just to put it into perspective, when a local police officer gets in trouble, the state police come in and investigate, they prosecute, and when the state police get in trouble the feds comes in and they prosecute. But when the federal government gets in trouble, there’s nobody to prosecute them. They’re not going to prosecute themselves. So it’s the old adage “who’s going to guard the guards?” What happens is that there is no watchdog for the federal government. So when you have all these families who have been so terribly victimized by the federal government they have no voice because their local media was invested in telling a story from decades ago and ignore all the facts. They really let them down and that troubles me.

How are Whitey Bulger and Catherine Greig similar to Charlie and Carol Gasko (the names that Bulger and his girlfriend lived under while on the lam)?

I respectfully decline to speak to that.

What kind of person is Whitey actually? How is Whitey different than the public persona, before and after he went on the lam?

I can tell you that I’ve spent thousands of hours with him. I visited him two days a week, seven or eight hours at a time leading to the trial. The person I came to know was shockingly different than that. He was engaging. An extraordinary storyteller, a photographic memory. He was more akin, in my mind, to someone who ran a Fortune 500 company than what you think of an organized crime figure. So my relationship and my association with him really was much different than I ever would have anticipated.

After the conviction, what options can you now explore?

There are a couple of important things that happened in Boston that I’m dissatisfied with. The first is that we made clear to the court that James Bulger was successful not just because he had great instinct and ability to beat people, but he was in an association with the Federal government, not that he was in informant but he had an association with a high ranking member of the strike force who was one of the premium prosecutors in the department of justice. That association was that he was going to receive protection. For whatever reason, the court decided that the jury wasn’t in a position that they should have had that information. The government blocked all the evidence of that relationship.

Right before trial there was a member of the Bathgate police who offered information that the handlers of the government’s witnesses, particularly John Matarano, were giving ongoing protection to him. When we tried to explore that, to show that this was really just a contrived story rather than based in fact, again we were prevented from doing that. So we felt that the jury and the l public really did not hear the actual facts, the history of what had happened during this whole tragedy. James Bulger was denied his right to a fair trial. Every citizen, no matter what your impression of them, has a right to a fair trial. As James Bulger said during the end of his trial, it was a sham. I don’t disagree with him.

I’ll take it back to court. I’ll argue it. If we win we’ll try this case again. If not, we’ll see if either Florida or Oklahoma will bring him down and we’ll have the trial there.

You came up through the state prosecutor’s office. How did your time as a DA differentiate how you approach a criminal defense case than someone who didn’t come up through the state offices?

They’re very similar but the perspective is very different. Jay Carney, who was co-lead counsel, was a prosecutor for five years. I started as a prosecutor at Suffolk County in the State system. I was a state prosecutor for five years. Our approach to the case is very different. The prosecutor’s approach to a case should be trying to ensure justice. You present the facts to the jury. You don’t make any emotional attachment to it. The jury decides whether the facts are enough for a conviction. The defense has an obligation to protect the client and to give them the best defense possible.

So a defense attorney can get emotionally attached?

As a prosecutor, there’s a certain level that you’re supposed to be dispassionate and only care for an individual, sometimes in cases where there are victims. It’s a temporary assignment. Whereas if you have a client, they’re coming to you because they’re asking you to fight for them. That could mean something very subtle or it could mean their life. And so there is a very different bond and connection. As a defense attorney, you become extraordinarily attached, but it’s important that you remain objective. The most important skill for a trial lawyer is objectivity, because a jury is not going to become attached as a defense attorney is to always need to things as objectively as possible. Though as a prosecutor, there are victims that I feel a strong attachment to.

You are one of the top Criminal Defense Attorneys in Massachusetts. Is there a secret society or club where you and other criminal attorneys like Bruce Cutler can let your hair down and talk shop?

No, the practical day to day reality is that being a trial lawyer is a very obsessive profession because you never sleep. It’s like studying for finals every day of your life. It’s not only a strain, it’s a tough road to follow because there are so many obligations you have to so many people. So sadly, I don’t have a lot of camaraderie with other trial attorneys where I can enjoy a moment and have drink. I literally work 100 hours a week. I’ve worked 80 hours a week since I was a prosecutor. It’s consuming. It’s in some ways damning, but it’s the obligation you take on when you get a client you do everything you can for them. It would be nice to have friendships and learn from other attorneys who have different experiences but in my regular practice, that’s rare.

You’re from the suburbs of Boston. When you were growing up were gangsters at all heroes to you like they can be in the city?

When I was young, everybody sees television. Everything is quite sensationalized on television and everybody wants to be the bad guy. There’s something mysterious and cool about being the bad guy. As you get older and, perhaps my experience as a prosecutor, you see some of the harm that comes from organized crime and it’s not as glamorous. This case particularly left me with some really difficult experiences that I don’t think I can ever escape from. That is what happens to the people left behind. The families left behind. It’s just a painful image to watch. Being so closely connected through this trial and empathizing so much with the pain and grief that’s lasted decades and generations of families. I don’t think I see things the same way as when I was a little kid.

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