A federal judge rejected a request Tuesday by lawyers for James “Whitey” Bulger to recuse himself from the reputed gangster’s long-anticipated trial, saying he has no conflict of interest in the case, as the lawyers had alleged.
In a pointed, 11-page ruling, US District Court Judge Richard G. Stearns said that any assertions that he would have a conflict were based on “specious and unsupported factual allegations.”
“I am confident that no reasonable person could doubt my impartiality,” the judge said, in a ruling that seemed to bark back at the request. “I have no doubt whatsoever about my ability to remain impartial at all times while presiding over this case.”
Bulger, 82, was one of America’s most wanted fugitives before his arrest in California in June 2011 after more than 16 years on the run. He is set to go to trial in March on a racketeering indictment that alleges he participated in 19 murders.
Lawyers for Bulger had alleged that Stearns would have a conflict because the judge was once a federal prosecutor, including during times when Bulger allegedly committed his crimes several decades ago. The judge was also chief of the criminal division of the US attorney’s office in Boston part of that time.
Bulger’s lawyers have indicated they may call the judge to testify as a witness as part of a motion to have the case dismissed. That motion will be based on Bulger’s argument that he was granted immunity from prosecution for his crimes because he was working as an FBI informant.
The lawyers alleged that Stearns had either known, or should have known, of Bulger’s immunity deal.
Bulger’s lead lawyer, J.W. Carney Jr., said outside the federal courthouse Tuesday that “it’s clear that most persons in law enforcement in the 1980s believed that my client Mr. Bulger was responsible for a wave of serious crime.” He added that Massachusetts State Police investigators suspected that Bulger was never prosecuted because of his relationship with the FBI, and he maintained the belief that Stearns would have known of the rumors, as well.
He also defended the allegations against the judge, saying “I’ve spent 34 years trying to upset judges by asking them to follow the law, and I’m not going to stop now.”
Carney has said that he will identify government officials who he contends gave Bulger an immunity deal when he files a motion to dismiss the case, but on Tuesday he did not indicate when that would happen.
Stearns had argued in his ruling that there was no evidence that he knew of the investigation into Bulger, or that the gangster had been a target. For that reason, he said he would not be considered a material witness in the proceedings, the standard a judge must follow in recusing himself.
The judge noted, for instance, that Bulger was being investigated by a federal New England Organized Crime Strike Force created and overseen by the Department of Justice, with no involvement from local US attorney’s offices. Local US attorneys did not have any involvement with the strike force until 1990, after Stearns had left the Massachusetts office, he said.
He said that standards for a judge to recuse himself are high so defendants and prosecutors cannot shop for judges.
Also Tuesday, a federal magistrate judge handling the initial proceedings of the case partially lifted a protective order that had limited disclosure of evidence that prosecutors turn over to the defense.
The order by US Magistrate Judge Marianne Bowler had barred Bulger’s legal team from sharing evidence with anyone outside the case. Bulger’s lawyers had contended it restricted their ability to share the information with other people to properly defend their client. The Boston Globe also sought to have the order lifted.
Carney said the order would allow the defense team to share some of the “hundreds of thousands” of documents with outside lawyers, for example, so they could discuss strategy, and groups such as focus groups or groups of friends and relatives “that a lawyer traditionally runs his or her case past” to get some feedback.
Bowler gave federal prosecutors two weeks to identify any information that should remain private, but she set guidelines on what kind of information should fall under privacy rules like medical records and autopsy reports.
She said defense lawyers could still challenge the release of that information. The protective order will at least remain in effect until prosecutors identify information that should remain under seal.