Federal prosecutors accused James “Whitey” Bulger Wednesday of including people he despises on his witness list, including several well-known journalists, in a strategy to bar them from the courtroom during his racketeering trial in federal court.
During a hearing Wednesday, Bulger’s lawyers asserted that the journalists may be called to testify and that they should not be able to hear any other testimony in the case.
But prosecutors said Bulger has targeted specific journalists to keep them out of the courtroom, saying he has been heard on recorded jailhouse conversations criticizing Boston Globe reporter Shelley Murphy and Globe columnist Kevin Cullen, two veteran journalists who recently published a book about him. In a letter to a friend, Bulger called Murphy a traitor and Cullen a low-life.
“He [Bulger] is trying to use this as a tool to kick out people the defendant doesn’t like,” said Assistant US Attorney Brian T. Kelly.
Typically, witnesses in cases are barred from a courtroom so they are not influenced by the testimony of others. Bulger’s lawyers have also named authors Dick Lehr and Gerard O’Neill, both former Globe reporters, and Boston Herald columnist Howie Carr on a list of more than 80 potential witnesses. Prosecutors argued that the media figures have no connection to the case and that there is no reason to list them as witnesses.
Bulger’s lead lawyer, J.W. Carney Jr., countered that prosecutors should have no say in his defense strategy, and said he would call the media figures to testify about their interviews with key witnesses in the case, including Bulger colleague Kevin Weeks and retired State Police colonel Thomas Foley. Carney said the content of those interviews could contradict the witnesses’ testimony.
“They are listed as witnesses, they are expected to be called as witnesses, and that’s the reason that the order of sequestration should apply to them,” Carney said.
The back-and-forth was part of the lawyer’s last-minute scramble to set ground rules in the case before opening statements and testimony begin, and it foreshadowed the fireworks that are expected.
Bulger, now 83, was once one of America’s Most Wanted until his arrest in June 2011 after more than 16 years on the lam. He faces a sweeping racketeering indictment accusing him of 19 murders, and his history of crimes and his relationship with the FBI have become fodder for books and Hollywood movies.
Bulger denies that he was an FBI informant and asserts that he had an agreement with the federal government that granted him immunity from prosecution.
During the hearing Wednesday, Bulger audibly scoffed when Assistant US Attorney Fred Wyshak said that Bulger strangled two young women in the 1980s. Bulger has denied killing the women in letters he sent from jail to a friend, who shared them with the Globe.
US District Court Judge Denise Casper said Wednesday that she hopes to empanel a jury by early next week, with opening statements beginning June 12.
On Wednesday afternoon Casper called an additional 100 potential jurors, bringing the jury pool to 775. Over the past two days the potential jurors have been sworn in, introduced to the case, and given background questionnaires to fill out.
By Friday morning, prosecutors and defense lawyers are expected to list those they believe should be excluded from the jury. Casper said she plans to conduct more in-depth interviews with the remaining pool beginning Monday.
With the testimony in the case nearing, prosecutors and defense lawyers have been scrambling to file last-minute motions over evidentiary rules and witness testimony.
Carney argued Wednesday that the defense should be able to tell jurors that government lawyers have offered contradictory statements about the credibility of a key witness against Bulger, Stephen “The Rifleman” Flemmi, depending on whether he was testifying for or against the government.
After Flemmi pleaded guilty in 2004 under a deal that sent him to prison for life for 10 murders, but spared him the death penalty, he was touted as a highly credible witness by prosecutors who used his testimony to help convict former FBI agent John J. Connolly Jr. of murder for his role in a 1982 slaying in Florida.
But when Flemmi was called to the stand by lawyers representing the families of Bulger’s alleged victims in wrongful death suits filed against the government, Justice Department lawyers from Washington urged the judges presiding over those trials to reject his testimony, which included chilling accounts of how Bulger allegedly strangled two women and shot an FBI informant.
“Mr. Flemmi is such a sick individual, it would seem difficult to render a judgment based on anything that he says,” a Justice Department lawyer said in 2009.
Carney argued that it is crucial for the defense to tell jurors about the government’s derogatory comments about Flemmi because he will be a major witness against Bulger.
“This is a statement by the government that Flemmi is not a credible witness, and it is an admission by the government,” Carney said.
But Wyshak argued that it would be an injustice if the statements by civil government lawyers were allowed at Bulger’s trial. He said judges in the civil cases clearly found Flemmi credible, because they awarded judgments to the families after finding the government was liable in the deaths. Furthermore, Wyshak said, those judges chastised the Justice Department lawyers for the way they handled the civil cases.
Casper took the matter under advisement.
Jonathan Albano, an attorney for the Globe, also urged Casper to reject the defense team’s request to sequester journalists, including Cullen and Murphy, saying it would violate not only the newspaper’s rights but also the journalists’ First Amendment rights.
He also challenged whether they could be called as witnesses. “The court should not be in the business of deciding which reporters will be allowed in and which should remain outside,” he said.
globe.com. Shelley Murphy can be reached at shmurphy@