Even if he had an official deal with prosecutors, James “Whitey” Bulger could never have received such a complete blanket of protection that it would have allowed him to commit murder, legal analysts said Tuesday in arguing that Bulger’s claim of immunity is just a ploy to sensationalize the case.
“There’s no such thing as a license to kill, and that’s what he’s claiming,” said Anthony Cardinale, a prominent Boston lawyer who has represented one of Bulger’s alleged victims in civil proceedings. “All you’re seeing is him trying to keep himself in the public eye, and making everyone pay attention to him.”
But that does not mean Bulger would be prevented from testifying about the type of deal he believed he struck with prosecutors. US District Court Judge Richard Stearns might have to balance Bulger’s constitutional right to take the stand with the possibility that the defense team would present a strategy that has no legal merit, the analysts said.
“It’s very rare for there to be any limitation of a defendant’s right to testify about what he did, and why he did it, regarding specific charges,” said attorney Martin Weinberg, who has represented a who’s who of clients in federal court.
Cardinale, however, questioned whether Bulger would ever take the stand, as his lawyers declared Monday, saying that not even his claim of immunity would protect him from the cross-examination of prosecutors.
“There are certain questions there are no possible answers to,” Cardinale said in an interview. “There’s no way he could give a valuable answer to why he killed a number of people on his hit list” including innocent bystanders.
Bulger’s claim of immunity has been raised before.
His former cohort Stephen “The Rifleman” Flemmi argued he was immune from prosecution for everything except murder for serving as an informant with Bulger. He testified about providing bribes to Bulger’s disgraced FBI handler, John J. Connolly Jr., and of sitting in fancy restaurants with FBI supervisors.
But a federal judge and an appeals court rejected that defense, saying the FBI, as an investigatory agency, could not legally grant immunity. Flemmi later pleaded guilty.
Legal analysts said Bulger would have to demonstrate a stronger claim of immunity by showing that he had received permission for his criminal deeds from high echelons of the Department of Justice that possess the authority to offer full protection. He would have difficulty presenting that legal defense, including in the cross-examination of witnesses, without offering some independent evidence, the analysts said.
“There would be a signed letter and a signed order, what you’d call a ‘get out of jail free card,’ ” said Brad Bailey, a criminal defense lawyer and a former assistant US attorney who investigated organized crime. “But just to say ‘so and so said,’ and to attribute it to someone who may be deceased, I don’t think that’s going to get him anywhere.
“None of us have ever heard of immunity to commit murder,” he said.
Bulger, a notorious Boston gangster, was once one of America’s Most Wanted criminals until his arrest in June 2011, after 16 years on the lam. He is accused in a federal racketeering indictment of participating in 19 murders.
Federal court hearings that began in the late 1990s exposed Bulger’s corrupt relationship with the FBI, in which he was allowed to carry out his crimes while secretly serving as a government informant.
Bulger’s lawyers disclosed Monday for the first time publicly that the 82-year-old plans to take the witness stand at his trial — scheduled to begin in March — to tell jurors of an immunity deal he said he struck with federal law enforcement officials that allowed him to carry out his crimes.
His lead lawyer, J.W. Carney Jr., would not identify who Bulger says granted him immunity but said it was someone within the Department of Justice, and not the FBI. “He’s in the best position to talk about how the federal government acted during a 30-year period because he was dealing with people directly,” Carney said.
Carney said he has corroborating evidence to support the claim, and has indicated he may call as witnesses past federal prosecutors and US attorneys. Carney also said he would introduce evidence that would impeach the credibility of past statements by former prosecutors, such as the late Jeremiah O’Sullivan, who was head of the Organized Crime Strike Force during a part of Bulger’s reign of crime.
O’Sullivan, who died in 2009, was the prosecutor criticized for deciding against indicting Bulger and Flemmi in a horse-racing scheme in the late 1970s, though about 20 others including their associates in the Winter Hill gang were charged. He denied protecting Bulger.
Regardless of what happens with the federal racketeering case in Boston, Bulger still faces state murder charges in Oklahoma and Florida, which could carry the death penalty.
Florida prosecutors have asked federal authorities to turn Bulger over after his federal case has been resolved so he can stand trial for first-degree murder in the 1982 slaying of John Callahan. Bulger is also accused of participating in the murder of Roger M. Wheeler in Oklahoma in 1981.
“The state of Florida never gave this guy immunity to kill anybody,” said Michael Von Zamft, a Miami-Dade assistant state attorney . “We do not believe he would have authority from the FBI or anyone in the Justice Department to kill anybody anywhere, certainly not in the state of Florida.”