A federal appeals court ordered the judge presiding over James “Whitey” Bulger’s murder and racketeering case to step aside Thursday because of his ties to the US Justice Department, raising concerns that the gangster’s long anticipated June trial will be delayed.
In a ruling that marked a major victory for Bulger, the US Court of Appeals for the First Circuit found that Judge Richard G. Stearns should not preside over the trial because he was a top prosecutor in the US attorney’s office in the 1980s, when Bulger claims that another prosecutor promised him immunity for his alleged crimes, including murder.
“It is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim,” wrote retired Supreme Court justice David Souter, who frequently sits on the Appeals Court and was a member of the three-judge panel that unanimously granted Bulger’s petition for a new judge.
Steve Davis, whose 26-year-old sister Debra was allegedly strangled by Bulger, said he fears that the case will not go to trial as scheduled because a new judge will need time to get familiar with its details.
“Nothing in this whole case has been right,” Davis said. “It’s all been in Whitey’s favor, not ours, not for the victims’ families. . . . It’s going to cause a delay in the trial either way you look at it.”
Bulger’s lawyers, J.W. Carney Jr. and Henry Brennan, said Bulger, 83, who is charged in a sweeping racketeering indictment with participating in 19 murders in the 1970s and 1980s, is not seeking a delay of his June 6 trial.
“We are looking forward to having a completely transparent trial,” Carney said. “We are going to have James Bulger explain to the public and to the victims’ families how it was that from 1972 until 1994 he was never charged with anything by federal prosecutors in Boston.”
In a series of criminal and civil proceedings, Bulger has been portrayed through testimony and court documents as a longtime FBI informant who was protected by his corrupt handlers because he provided information against his rivals in the Mafia. But Bulger, who evaded capture for 16 years until his arrest in June 2011, insists he was never an FBI informant, and his lawyers say he is waiting for his trial to explain his deal with the government.
“The history of the Department of Justice has been scandalous in withholding information from these families,” said Carney, referring to the relatives of victims. “I feel bad for the families that the trial of James Bulger may be the first time they get to hear the truth.”
Earlier this month, Stearns ruled that Bulger could not ask jurors at his upcoming trial to consider his immunity claim. Stearns said a prosecutor did not have the authority to give the gangster a “license to kill.”
Bulger’s lawyers said they will urge the new judge to reconsider Bulger’s request to allow his immunity claim.
After the Appeals Court ruling, US Attorney Carmen M. Ortiz released a statement saying: “We respect the opinion of the court and will continue to prepare the matter for trial. We are hopeful that this opinion will not cause a delay, as it has always been our goal to try this case as soon as possible. The victims’ families have waited long enough.”
Sarah Thornton, the clerk of the US District Court, said she could not comment on when or how a new judge would be selected. Typically, the court randomly assigns cases. Because all but five of the 14 federal judges in Massachusetts are former federal prosecutors, some legal specialists speculated that only those five would be included in a random drawing.
But Bulger’s lawyers said they have no concerns about the other judges who previously served in the US attorney’s office. “There is no other judge that we object to,” Carney said.
Stearns had rejected Bulger’s request to step aside, ruling that he could be impartial and had no knowledge of investigations involving the gangster while he was a federal prosecutor. Stearns served as chief of the US attorney’s criminal division in the 1980s, during the same period that Bulger claims another federal prosecutor, Jeremiah T. O’Sullivan, who died in 2009, promised him immunity. Though O’Sullivan reported directly to the US attorney general while serving as head of the New England Organized Crime Strike Force, he regularly shared information with his counterparts.
Bulger’s lawyers also argued that Stearns had a conflict because he remains a close friend of FBI Director Robert S. Mueller III, who also was a prosecutor in the US attorney's office in Boston when Bulger said he had immunity.
In his ruling, Souter concluded the institutional history was a significant issue.
“Given the institutional ties described here, the reasonable person might well question whether a judge who bore supervisory responsibility for prosecutorial activities during some of the time at issue could suppress his inevitable feelings and remain impartial when asked to determine how far to delve into the relationship between defendant and government,’’ Souter wrote.
Boston attorney Harvey Silverglate called the Appeals Court ruling “a no-brainer” and said, “There was no way Judge Stearns could sit on this case and maintain public confidence in the system.”
Silverglate said that the Justice Department has never provided a full account of Bulger’s relationship with the FBI and the Justice Department and that it was critical to assign a judge who was not a former federal prosecutor.
He predicted that the trial could be delayed by as much as several months because “it’s going to take another judge quite a bit of time to catch up.”
Donald K. Stern, who served as US attorney when Bulger was indicted in 1995, said he disagreed with the decision to remove Stearns but understood the reasoning.
“The Bulger saga is to some extent the third rail in criminal justice,” Stern said. “No doubt the court wanted to avoid any possible perception of partiality, even as it made clear that there was no evidence or suggestion of actual bias.”