The Justice Department and the FBI have been unable to locate any documents that support James “Whitey” Bulger’s claim that he was authorized to commit crimes, including murder, according to a government memorandum filed in court Friday.
Bulger, 83, says that former federal prosecutor Jeremiah T. O’Sullivan, who died in 2009, verbally promised him lifetime immunity decades ago, though he has yet to provide specifics, including the date he says it was granted.
In the affidavit filed Friday, a Justice Department official who supervised O’Sullivan during much of the time O’Sullivan was head of the New England Organized Crime Strike Force, said O’Sullivan never discussed giving Bulger immunity and would not have had the authority to grant it on his own.
“In my view, if O’Sullivan did, in fact, enter into an immunity or nonprosecution agreement with James Bulger without obtaining the proper approvals, O’Sullivan would have acted beyond the scope of his authority,” David Margolis, associate deputy attorney general, wrote in the affidavit.
US District Judge Richard G. Stearns is weighing a request by prosecutors to prohibit Bulger from presenting his immunity defense to jurors when he goes to trial in June. Bulger is charged in a sweeping federal racketeering case with participating in 19 murders in the 1970s and 1980s. Prosecutors have argued there is no merit to the claim and urged the judge to decide the issue prior to trial.
In a memorandum filed Friday Bulger’s attorney, J.W. Carney Jr., argued that Bulger, who has vowed to take the stand in his own defense, would be denied a fair trial if he is forced to reveal details of his defense to prosecutors in advance of the trial.
“In addition to opening the defendant up to impeachment at trial, it would run the very real risk of providing information to the prosecution that may be used to connect the dots against him or lead to the discovery of previously unearthed incriminatory evidence,” Carney wrote.
Bulger, who is being held at the Plymouth County Correctional Facility, insisted during a jailhouse conversation with his brother, John, last September that he was not an FBI informant and paid FBI agents for information, prosecutors said.
Last month, Carney told reporters that Bulger asserts he was never an informant. When pressed about why the government would grant Bulger immunity if he was not providing information, Carney declined to elaborate, saying he will make his case at trial.
Bulger’s claim that he was not an informant is contradicted by FBI files and court testimony indicating he was an informant from 1975 to 1990 and that he provided information about his rivals in the Mafia and members of his own gang.
“Substantively, Bulger’s claim — that he was never an FBI informant, but still had an unlimited, legally-binding license to kill — is both strange and unsubstantiated,” prosecutors wrote in Friday’s court filing, noting that Bulger’s informant file contained over 700 pages of reports.
Bulger’s longtime FBI handler, John J. Connolly Jr., was convicted of warning Bulger to flee shortly before Bulger’s 1995 federal racketeering indictment. The gangster, who was one of the FBI’s 10 Most Wanted, was captured in June 2011 in Santa Monica, Calif., where he had lived in the same rent-controlled apartment for 15 years.