A federal appeals court has agreed to hear James “Whitey” Bulger’s claims that the judge set to preside over the notorious gangster’s trial should step aside because of his close ties to the Justice Department and the FBI.
The US Court of Appeals for the First Circuit has set a Jan. 8 hearing and has asked prosecutors to weigh in on Bulger’s claims by Dec. 27. US District Court Judge Richard Stearns, who has denied he has a conflict of interest in the matter, may also weigh in if he chooses.
Earlier this month, Bulger’s lead lawyer, J.W. Carney Jr., asked the appeals court to issue a writ of mandamus, which is essentially an order forcing Stearns to vacate earlier rulings in which he rejected Bulger’s request that Stearns disqualify himself from the case.
Carney said in court papers that if Stearns is the judge when Bulger goes to trial next year, the trial “will go forward under a dark cloud that threatens to taint the integrity of every aspect of the proceedings.”
Paul V. Kelly, a prominent Boston attorney, said the appeals court’s decision to hear the matter is significant in that it will dispel any arguments one way or the other.
“I think it just give the whole trial proceedings a much higher level of credibility in the minds of the victims and the public itself,” said Kelly, of the law firm Jackson Lewis. He said the appeals court seems to be expediting the hearing, so that the June trial date is not affected.
Kelly also said that the appeals court’s decision to take up the matter is extraordinary, in that the court would not generally take up a request for a judge to step aside. The standards requiring a judge to do so are high, he said, and repeated requests by defense attorneys would only clog up the courts.
Bulger, 83, a longtime FBI informant whose relationship with the agency was exposed in court hearings in the late 1990’s, is accused in a racketeering indictment of 19 murders. He has vowed to take the stand in his own defense and contends he was promised immunity from prosecution by Jeremiah T. O’Sullivan, the federal prosecutor who led the New England Organized Crime Strike Force during the 1980s. O’Sullivan died in 2009.
Carney argued Stearns’s ability to be impartial is questionable because he was a top-ranking prosecutor in the US attorney’s office in the 1980s, when Bulger asserts he had government prortection, and is a close friend of FBI director Robert S. Mueller III.
The defense wants to call Stearns as a witness at the trial to question him about Bulger’s immunity claim. Stearns, who was randomly assigned to preside over Bulger’s case, denied two requests by Bulger to disqualify himself, ruling that he was not involved in any cases related to Bulger while a prosecutor, and there was no basis to call him as a witness.
Federal prosecutors opposed the defense’s push for a new judge and accused Bulger of trying to delay his trial.
Bulger, who fled just before his January 1995 indictment after being tipped by his former FBI handler, was captured in June 2011, in Santa Monica, Calif., after more than 16 years on the run.
Bulger’s sidekick and fellow FBI informant, Stephen “The Rifleman” Flemmi, also said the pair had been promised immunity from prosecution in exchange for providing information against the Mafia. In 1999, a judge found the FBI gave Bulger and Flemmi tacit approval to commit crimes and even protected them from prosecution, but there was no formal immunity agreement.