Lawyers for James “Whitey” Bulger urged a federal appeals court to order the judge overseeing the reputed gangster’s upcoming trial to step aside, saying the jurist’s ties to the FBI and the Department of Justice present a strong bias and conflict of interest in the case.
The lawyers said they plan to call US District Court Judge Richard G. Stearns as a witness in the long-anticipated trial, and that his ties to prosecutors and his own interest in the case would influence any impartial jury.
Stearns was once head of the criminal division of what Bulger says was a corrupt US attorney’s office in the 1980s that granted him immunity from prosecution of his crimes. The lawyers called for a judge who has no ties to the office.
“The appearance of impartiality is important in every case, and it is critical when the whole world is watching,” the lawyers, led by J.W. Carney Jr., said in a filing with the US Court of Appeals for the First Circuit on Thursday.
In an extraordinary legal step, the Appeals Court has agreed to hear arguments, and a hearing is slated for Jan. 8.
By taking the rare immediate step to hear a recusal request, legal observers say, the Appeals Court is moving proactively in a high-profile case to settle the question for the public and for Bulger’s alleged victims, so that there is no question about the integrity of the process when the June trial arrives.
Prosecutors have argued that Bulger has no basis for the request and that he is simply trying to delay the trial. Bulger, who was arrested in 2011 after 16 years on the lam, is now 83.
Carney argued in a final filing before next week’s hearing that he will be prepared for the trial, regardless of the judge.
And he continued to argue that Stearns’s refusal to recuse himself or be questioned on the stand has tainted the integrity of the trial, by infringing on Bulger’s rights to call witnesses in the case.
Bulger’s lawyers also questioned how Stearns will act when they seek to call as a witness FBI Director Robert S. Mueller III, a close friend of the judge.
At the core of the argument is Stearns’s work as a federal prosecutor, serving in the 1980s as chief of major crimes, chief of the criminal bureau, and first assistant US attorney.
In denying previous requests to step aside, the judge has noted that he was not involved in any investigations of Bulger because the gangster had been targeted by the Organized Crime Strike Force, which operated independently of the US attorney’s office.
But Carney argued there was no line separating the two units, that each was aware of investigations by the other.
He said Bulger will testify that he was granted immunity by the late Jeremiah O’Sullivan, who had headed the strike force.
“The jury is entitled to hear this evidence, evaluate it, and determine whether it corroborates the petitioner’s claim of immunity from prosecution,” Carney said in court filings.
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