Dean Hatch says he won’t hold his breath waiting for the First Circuit Court of Appeals to force US District Court Judge Richard G. Stearns to recuse himself from presiding over Whitey Bulger’s trial.
“The judges up there know each other,” Hatch said, sitting in his house in Western Massachusetts. “They’re friends. They don’t like to embarrass each other.”
Hatch may sound cynical, but sitting in a wheelchair, knowing you’ll never walk again, can do that to you. Once upon a time, Hatch asked the Appeals Court to rule against Stearns in a different case. He accused Stearns of misinterpreting the law so that a jury was forced to rule against him in a lawsuit he filed after an accident left him a paraplegic. He was struck by a gate on a hydraulic trailer while delivering a load of pipes in 2007. Needless to say, the Appeals Court did not side with Hatch.
“My lawyers were convinced the law was on my side,” Hatch said. “But that doesn’t mean anything when you’re asking judges to rule against each other.”
Hatch says there is an inherent conflict of interest when it comes to the judicial fraternity overseeing itself, which is a variation of the argument Whitey’s lawyer J.W. Carney is making in demanding that Stearns recuse himself.
Whatever you think about Carney’s preposterous claim that his client should be acquitted of charges that include 19 murders because Bulger had been promised immunity by a prosecutor who is now conveniently dead, Carney’s right about Stearns having, at the very least, the appearance of a conflict of interest.
It is not a matter of law, but it is a matter of fact that when it comes to the prosecution of Bulger, the FBI and the Justice Department are unindicted coconspirators. The FBI protected Bulger as its informant; the Justice Department approved and looked the other way. It went far beyond Whitey’s FBI handler and South Boston homeboy John Connolly and Connolly’s supervisor John Morris helping Whitey knock off potential witnesses against him. The Justice Department’s simplistic narrative of Whitey being insulated by a corrupt agent and his equally corrupt supervisor was nonsense, cynical damage limitation.
In 1999, Judge Mark Wolf concluded there were more than a dozen FBI agents, supervisors, and Justice Department officials who engaged in what could be generously described as corruption in the handling of Bulger. After dispensing with Connolly, special prosecutor John Durham promised to investigate and at the very least name and shame those officials. If you held your breath waiting for Durham’s still-undelivered report, you’d be dead now.
After trying to pin the whole shebang on Connolly on the criminal side, the Justice Department shamelessly changed tactics on the civil side, after families of Bulger’s victims sued the government. Instead of settling, the Justice Department spent millions on litigation, fighting the families, smearing victims, insulting the rest of us.
Stearns was a prosecutor in the US attorney’s office in the 1980s, when the FBI was at its busiest protecting Whitey, subverting honest law enforcement inquiry into him. Stearns’ insistence that Whitey was dealing with the Justice Department’s Organized Crime Strike Force, which at the time worked separately from the US attorney, is a distinction without a difference. Stearns, who became a judge in 1993, is a product of the same Justice Department culture that will be on trial alongside Bulger. Stearns is a close friend of FBI Director Bob Mueller, who has his own questions to answer about Whitey.
In refusing to recuse himself, Stearns argued that under Carney’s reasoning, eight of the 11 Boston-based judges would be disqualified from presiding over Bulger’s trial because they served as federal prosecutors or Justice Department lawyers at some point in their career.
That sounds about right. Stearns declined to be interviewed for this. He is not a bad guy, and he’s not a bad judge. He’s just not the right judge for Whitey Bulger.Kevin Cullen is a Globe columnist. He can be reached at firstname.lastname@example.org. Follow him on Twitter @GlobeCullen.