Gangster James “Whitey” Bulger plans to argue that he had an agreement with the FBI, forged four decades ago, that protects him from prosecution for any crimes committed during his reign as a mob boss, including the 19 murders he is accused of participating in.
The defense team’s legal strategy emerged Monday in court papers filed in Bulger’s federal racketeering trial. Also Monday, at a hearing in federal court in Boston, his trial was pushed back four months, to March 4, after his lawyers complained about the complexity of the case.
The notorious gangster, speaking for the first time through his lawyers about his scandalous arrangement with the government, said in the court records that he plans to file a motion to dismiss the charges, based on his immunity from prosecution for serving as an FBI informant.
Bulger has requested a hearing and indicated that he may summons US District Court Judge Richard G. Stearns, a former federal prosecutor who is now presiding judge on the case, to testify about what he knew of Bulger’s longstanding agreement with the federal government.
Bulger’s lawyer, J.W. Carney Jr., would not elaborate on the agreement. But he said outside the courthouse and in court records that the government’s refusal to indict Bulger on the murder charges before his relationship with the FBI was exposed in the late 1990s, for instance, demonstrated that he had immunity for his crimes.
“An important question is, why wasn’t Bulger charged,” Carney said.
He added in court records: “The defendant will show that a pattern of corruption and misconduct occurred at many levels of the federal government in an effort to enforce its immunity agreement with the defendant.”
Bulger’s contention that he was immune from prosecution stirred outrage and disdain among families of his alleged victims.
“I’m sure that goes out the window when you murder dozens of people,” said Tom Donahue, whose father, Michael, was an innocent victim allegedly shot by Bulger in 1982.
Because Stearns may be called as a witness, Carney asked that the judge recuse himself from the case. Carney argued that Stearns — who served as chief of the criminal division in the US attorney’s office in Boston during part of Bulger’s reign as a mob boss — had known or should have known about Bulger’s relationship with the FBI.
“The criminal division’s failure to prosecute the defendant while Judge Stearns was its chief is corroboration of the Department of Justice’s grant of immunity to the defendant,” Carney and another lawyer, Henry B. Brennan, said in court documents.
The lawyers added, “Based on the assistance of the Department of Justice . . . the defendant became arguably the most powerful organized crime figure in Boston.”
Stearns has not indicated whether he would recuse himself or hold a hearing on the request.
In the other development in the case on Monday, Bulger’s trial date was moved from Nov. 5 to March 4 of next year after his lawyers complained that they have been overwhelmed by the evidence in the case and they could not prepare for a trial by November.
Assistant US Attorney Brian Kelly said that prosecutors will continue to help Carney’s team organize evidence in the case, but he stressed that the evidence was neither overwhelming nor disorganized.
“This is not a complicated white-collar case,” Kelly said. “This is [about] murder and mayhem.”
He also said he would oppose the request to remove Stearns from the case.
Bulger’s apparent defense strategy would not be the first time a defendant has claimed immunity from prosecution for serving as an informant. Bulger’s associate, Stephen “The Rifleman” Flemmi, also argued that he could not be prosecuted because of his and Bulger’s relationship with the FBI.
A US District Court judge rejected that defense in 1999, and the US Court of Appeals for the First Circuit upheld the decision.
Carney said after the brief court hearing Monday that Bulger’s agreement with the government was different from Flemmi’s.
Carney indicated in court records that he plans to call as witnesses some of the former law enforcement officials who held leadership positions in the FBI and the US attorney’s office, such as Stearns, and former governor William F. Weld, who was also a US attorney at the time. He said he would introduce evidence that would challenge the credibility of past testimony by deceased law enforcement officials, such as former US attorney Jeremiah O’Sullivan.
O’Sullivan was the US attorney who decided against indicting Bulger and Flemmi in a historic horse race-fixing scheme, though about 20 other gangsters, including associates in their Winter Hill gang, were charged and received lengthy prison sentences.
Carney also noted that Weld had indicated in notes when he was US attorney that he had suspected that Bulger was an informant for the FBI and that his name had been mentioned in a murder investigation.
Carney said the failure to indict Bulger at that time showed that he was immune from prosecution in what he called a corrupt law enforcement system.
The attorney has indicated that he could call other high-profile figures including Robert Mueller, former chief of the criminal division in Boston and now the director of the FBI. He may also call disgraced FBI agents John J. Connolly Jr., Bulger’s former handler, and John Morris, his supervisor.
Carney also said Monday that he will identify the person who granted Bulger immunity.
In the court documents, Carney said Stearns must have known about Bulger’s reputation before becoming an assistant US attorney in Boston in 1982, and that he must have known about the crimes while he remained in that office through 1990. Four of the counts in Bulger’s indictment, which allege 31 racketeering acts including murder and extortion, occurred while Stearns was in office.
Bulger faces other charges of murder from before Stearns took office, as well as allegations that he shipped arms and ammunition to the Irish Republican Army.
Carney argued in the court records that Stearns’s subordinates at one point investigated Bulger in the mid-1980s and that they have indicated in past hearings that they suspected at that time that Bulger was working for the FBI. Some of Bulger’s associates were also investigated for murder. Still, he was not indicted, Carney noted in the court documents.
“The decision to refrain from indicting the defendant and exposing his relationship with the FBI can be adequately explored for the court only while Judge Stearns is in front of the defendant in the witness box, not above him from the bench,” Carney wrote in the documents.