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Judge upends Bulger’s defense plan

Rejects claim of immunity from prosecution

A federal judge rejected the notion Monday that James “Whitey” Bulger could have had open permission from the government to carry out crimes including murder, effectively voiding the gangster’s defense that he was immune from prosecution.

US District Court Judge Richard G. Stearns said in a 20-page ruling that such an agreement would have been unlawful and questionable under any law enforcement standards, even if issued by a sitting US president to protect national security.

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“The court concludes that any grant of prospective immunity to commit murder was without authorization and is hence unenforceable under any circumstance,” the judge ruled, adding that a “license to kill is even further beyond the pale.”

The ruling redefines how the Bulger case will play out.

Bulger, 83, once one of America’s Most Wanted, has been basing his defense for his trial in June on the assertion that he had an agreement with the late prosecutor Jeremiah T. O’Sullivan decades ago that protected him from prosecution for his crimes, including murder. O’Sullivan, the former head of a task force that investigated organized crime, died of natural causes in 2009.

With the ruling, Stearns ­decided on Bulger’s defense ­before it could ever reach a jury. Prosecutors had asked Stearns to resolve the issue so jurors would not be distracted by the argument and so the trial could focus on the issue in the case: the racketeering indictment against Bulger that alleges he took part in 19 murders in 1970s and 1980s.

Bulger’s lead lawyer, J.W. Carney Jr., had argued that ­jurors should be allowed to hear Bulger’s defense, from the gangster’s own testimony, calling it a matter of his right to a fair trial. Bulger can still testify, but he would be barred from discussing anything immaterial, in this case, prosecutors ­argue, his meritless claim of ­immunity.

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Carney issued a statement saying: “The federal government has done everything in its power over the past 25 years to cover up the relationship between James Bulger and federal law enforcement authorities.

“The federal government, including attorneys who worked for the [Department of Justice] during this period, desperately wants to conceal this sordid history from the jury, the victims, and the public. Today’s decision is another step toward that goal.”

Carney added: “The defendant’s very right to a fair trial is at stake by this decision. We will continue to fight to have the truth presented to a jury, so that the jurors will have the last word on this era by their verdict.”

In a separate legal matter, Carney has asked Stearns to ­recuse himself from the case, saying the judge was a former prosecutor during much of the time Bulger was allegedly committing crimes, and so he would have a conflict of interest. Stearns refused to step aside, but the US Court of ­Appeals for the First Circuit agreed to hear the argument and is considering a decision.

An order to have Stearns ­recuse himself could effectively nullify Monday’s decision.

In his ruling Monday, Stearns did not address the pending Appeals Court decision. But on the assertion of ­immunity, he said he has the authority to resolve matters of law before they go to trial, to “narrow the focus of the inquiry at trial, thereby limiting the scope of evidence to be presented and the potential for jury confusion and distraction.”

In addition, the judge said he found no legal basis for ­Bulger to say he had an open agreement to commit murders, saying no standard of law ­allows for immunity from prosecution for future crimes.

Stearns acknowledged that Bulger could argue that he reached an agreement protecting him from prosecution for past crimes that were committed prior to that deal being reached. Stearns made clear, however, he was not ruling on whether it would have been a proper agreement.

Also, the judge said any claim about immunity for past crimes would have to be decided before trial. Stearns said he would not be able to make a ­determination until Bulger states when and how he ­received an immunity agreement and proves its validity.

So far, Carney has refused to provide specifics about an ­immunity agreement, saying only that it would play out at trial. The judge gave Carney two weeks to respond with those specifics and to respond to the government’s claim that such an agreement would have violated US Department of ­Justice standards, and so would have been void, anyway.

Bulger had a longtime relationship with the FBI and fled shortly before his federal racketeering indictment in 1995, ­after he was tipped off by his handler, John J. Connolly Jr. In recent court filings, however, Bulger has taken the position that he was not an FBI informant but, at the same time, he was granted immunity. His lawyer has declined to elaborate on why Bulger would be given ­immunity if he was not an ­informant, saying Bulger will make his case at trial.

Bulger was on the lam for more than 16 years before he was finally captured in June 2011 in Santa Monica, Calif., with his girlfriend, Catherine Greig.

After pleading guilty to harboring a fugitive and identity theft last year, Greig was sentenced to eight years in prison. She has appealed the sentence, and a hearing is slated for Tuesday.

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