A federal appeals court judge said Tuesday that he is concerned that the public may not believe that James “Whitey” Bulger will get a fair trial if the case goes forward before US District Judge Richard G. Stearns, who was a top federal prosecutor while the gangster was an FBI informant.
Senior Judge Bruce M. Selya spoke about public confidence in the courts during a hearing in Boston where Bulger’s defense lawyer, J.W. Carney Jr. asked the Court of Appeals for the First Circuit to remove Stearns from Bulger’s impending trial.
“I’m concerned about the public perception as to whether the defendant can get a fair trial under these circumstances,’’ said Selya, a member of a three-judge panel that heard arguments on Bulger’s request for a new trial judge.
Selya pointed out that Bulger, who is scheduled to stand trial in June in connection with 19 killings in the 1970s and 1980s, has yet to offer any proof of his assertion that he was granted immunity from prosecution by a former federal prosecutor. Still, he said Bulger insists that he will not get a fair trial before Stearns because he was a prosecutor in the US attorney’s office from 1982 to 1990, including a stint as chief of the criminal division.
Carney, who has also said he wants to call Stearns as a witness, summarized the kind of judge he thinks should handle the Bulger trial: “a judge not connected to the most infamous period in law enforcement history in Boston.’’
In the past, families of Bulger’s alleged victims have opposed removal of Stearns, citing concerns that it was a tactic to delay the trial. But Carney assured the appeals court Tuesday that he would be ready for trial, even if the case is turned over to another judge.
After Tuesday’s hearing, Patricia Donahue, whose husband, Michael, was allegedly killed by Bulger in 1982, said she had second thoughts about whether Stearns should preside over the trial.
“To me, it seems there is a good possibility he shouldn’t be on the case,’’ Donahue said. “I have my doubts now.’’
Selya was joined on the bench Tuesday by the chief judge of the First Circuit, Sandra Lynch, and David Souter, a retired US Supreme Court justice who sits on some cases because he is a former member of the First Circuit.
When pressed by Souter, a New Hampshire native and former prosecutor, to provide more information about Bulger’s alleged immunity deal, Carney offered one new detail. He said Bulger was given immunity before Stearns became chief of the US attorney’s criminal division in December 1984.
While Carney has said in court that Bulger plans to testify at trial and assert he was promised immunity from prosecution, he has not filed any sworn affidavits detailing the alleged immunization agreement, except to say it was approved by the late Jeremiah O’Sullivan, who led the New England Organized Crime Strike Force in the 1980s. O’Sullivan, who died in 2009, testified previously that he never gave immunity to Bulger.
O’Sullivan’s unit operated out of the US attorney’s office, but reported directly to the US attorney general.
Stearns, who rejected two requests by Bulger’s lawyers to recuse himself from the case, has said in court papers that he was not involved in any investigations involving Bulger, knew nothing about any immunity agreement, and is confident he can be impartial. He was randomly assigned to the case.
During questioning by the Appeals Court judges, Carney said Stearns had handled the case fairly so far, but added that he was concerned about whether Stearns could remain impartial during the trial.
Assistant US Attorney Zachary Hafer called Bulger’s immunity assertion “outlandish and unsupported’’ and argued there was no basis to remove Stearns from the case.
He also pointed out that the US attorney’s office and numerous federal and local law enforcement agencies repeatedly targeted Bulger in the 1980s, but the cases never led to prosecution because those investigations were compromised by corrupt FBI agents and a corrupt state trooper who leaked information to Bulger.
Carney described Bulger as Boston’s most notorious criminal from 1972 to 1990 and questioned how Stearns could have remained unaware of the mobster’s alleged exploits and the investigations underway in the US attorney’s office, given Stearns’s high-ranking position in the office.
Selya said Bulger’s case was unprecedented, citing his “unorthodox working relationship with the Justice Department and the FBI,” which was found to be “thoroughly corrupt’’ by judges who handed down decisions in other cases related to the Bulger scandal.
Bulger, 83, was an FBI informant from 1975 to 1990. He fled shortly before his 1995 racketeering indictment after being warned by a retired FBI agent that his arrest was imminent. He was captured in June 2011 in Santa Monica, Calif.