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Bulger defense says prosecutor gave immunity

Alleged deal was made decades ago

Lawyers for James “Whitey” Bulger have identified the late federal prosecutor Jeremiah O’Sullivan as the federal agent who allegedly gave the notorious gangster immunity to commit his reign of terror.

Attorney J.W. Carney Jr. of Boston made the bombshell allegation in a court filing late Wednesday in which he again called for a US District Court judge to recuse himself from presiding over the case. He said the judge has an apparent conflict of interest as a former prosecutor who worked at the same time as O’Sullivan, a former US attorney who died in 2009 at age 66.

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Carney said he may call US District Court Judge Richard G. Stearns and other former prosecutors as witnesses to testify about the leeway that the leadership within the US attorney’s office gave Bulger and about their failure for years to charge him with any crimes, which he said would speak to the immunity agreement that Bulger alleges that he had.

Stearns was a former federal prosecutor and chief of the criminal division during part of Bulger’s alleged reign of terror in the 1970s and 1980s. But the judge was not part of the New England Organized Crime Strike Force that had an apparent relationship with Bulger at the time and he has maintained he did not know Bulger was the target of any investigation.

Carney argued there was no line dividing work between the Strike Force and the US attorney’s office, and so prosecutors from both units shared and were aware of investigations.

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The judge refused an initial request to recuse himself in ­July, citing the high standards that must be met for a judge to have to recuse himself for conflict of interest concerns.

“I have no doubt whatsoever about my ability to remain impartial at all times while presiding over the case,” Stearns said in his ruling, maintaining he had no knowledge “of any case or investigation” in which Bulger was “a subject or a target.”

Whitey Bulger’s lawyers say the judge in his case worked with a former US prosecutor who gave Bulger free rein.

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But Carney said Bulger’s reputation was well known, or should have been, particularly among leaders in the US attorney’s office.

He also said that the notorious gangster, now 83, will testify to support his assertion. He said Bulger will provide “a detailed account of his receipt of immunity by O’Sullivan,” who was a member of the strike force and at one point its chief.

In one example, Carney said, Bulger will discuss a time when O’Sullivan allegedly ordered Bulger be removed from a list of targets in a horse race-fixing scheme in the early ’80s.

Brian T. Kelly, one of the prosecutors in the case, wrote a letter to Carney on Friday in which he said the government has given defense counsel ample materials pertaining to O’Sullivan, as requested, calling it typical procedure in the case.

He offered on his own, however, that “the First Circuit has already held that O’Sullivan was unaware of any promise of immunity.”

He added, “O’Sullivan himself testified under oath before Congress that he never extended immunity to either James Bulger or Stephen Flemmi.”

Carney added that, in addition to Stearns, he would call other Department of Justice leaders to testify as to why Bulger was never charged by the federal government. Those leaders would include FBI director Robert Mueller, who served as a federal prosecutor and chief of the criminal division in Massachusetts in the early 1980s, and with whom Stearns has a close relationship.

Carney said he will introduce evidence from a courthouse ceremony where Mueller characterized Stearns as a “friend and mentor,” and in which Stearns called the FBI director’s speech “the greatest tribute that a friend could pay.”

Bulger's lead lawyer questioned whether Stearns could remain impartial in deciding whether he and Mueller could be called as a credible witness to testify about the immunity agreement, which has emerged as Bulger's main point of defense in a trial that could trigger the death sentence.

“Federal law mandates in this situation that Judge Stearns recuse himself from this case,” Carney said in a 24-page motion filed late Wednesday. “The law — and common sense — says that a person cannot be both judge and witness. . . . To do so otherwise will put an irreparable taint on the public’s view of the fairness of the defendant’s trial, and allow citizens to believe that the infamous cover-up of misconduct by past members of the Department of Justice, the United State’s attorney’s office, and the FBI is continuing.”

Carney said Bulger wasn’t accused of any crimes in a US indictment until after Stearns, Mueller, and O'Sullivan left office, and he argued their testimony will focus on why that didn’t happen. That should be up to a jury to decide, he said.

Bulger was one of America’s Most Wanted 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.

He is also the notorious gangster at the center of one of the most scandalous periods in the history of the FBI. A series of hearings in Boston in the ’90s exposed a corrupt relationship between him and his FBI handlers. During that time, he was allegedly allowed to carry out crimes including murders in exchange for working as a cooperating witness against the New England Mafia.

Carney has said that Bulger was granted immunity in exchange for his cooperation, though legal analysts have questioned whether anyone could have had a right to kill, as Bulger asserts.

US prosecutors, who have argued Stearns does not have to recuse himself, also deny Bulger had any claim of immunity.

O’Sullivan suffered a heart attack and several strokes in 1998 when he was slated to testify about Bulger and Flemmi before US District Court Judge Mark L. Wolf. O’Sullivan was in a coma for a month.

In 2002, O’Sullivan was called before Congress during the Government Reform Committee’s investigation of the Boston FBI. He denied ever protecting Bulger and Flemmi from prosecution for serious crimes.

O’Sullivan acknowledged dropping the pair from a 1978 race-fixing case against the Winter Hill Gang, of Somerville, because he said he considered them small-time players and was focused on gang leader Howie Winter.

Milton Valencia can be reached at mvalencia@globe.com and Travis Andersen can be reached at tandersen@globe.com.
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