As they inched closer to selecting a jury in the trial of James “Whitey” Bulger, lawyers in the high-profile case grew heated in last-minute arguments Friday, with prosecutors seeking to defend a longtime detective who was one of the first to investigate the notorious gangster.
Assistant US attorney Fred Wyshak, typically fierce and combative, turned emotional as he defended State Police Detective Lieutenant Stephen P. Johnson against allegations that he was protecting a witness who is set to testify against Bulger, admitted hit man John Martorano, from prosecution for recent crimes.
“One of the best law enforcement officers I know, and [I] worked with him for 20 years,” Wyshak said Friday, holding back tears.
The exchange occurred during a hearing Friday as US District Court Judge Denise J. Casper sought to lay out ground rules as testimony nears in Bulger’s long-awaited trial. The judge agreed Friday to call back 150 potential jurors for further questioning Monday based on their answers to a survey they recently completed, to see if they would be fit to serve on a final panel. Another 350 were excluded based on their answers to the survey. The judge hopes to have a jury picked by Wednesday, with opening statements slated for that morning.
Also Friday, Casper granted a request by the Boston Globe to exclude two of the newspaper’s journalists, Shelley Murphy and Kevin Cullen, from a sequestration order that would keep potential witnesses out of the courtroom. Bulger’s defense lawyers initially sought to name Murphy and Cullen, who wrote a book about the gangster, as witnesses, though the newspaper argued that it was a deceitful, vindictive strategy to keep them out of the courtroom.
The judge did not issue an order on the request for more information related to Martorano, however, but she indicated it was a pressing issue and that she may decide soon.
Bulger’s defense team indicated in a court filing late Thursday that US Department of Justice officials had investigated a complaint that Johnson was protecting Martorano, and the defense lawyers sought more information about that issue, saying it would impeach Martorano’s credibility.
Martorano was a Bulger associate and served 12 years in prison for 20 murders. He began cooperating with the government in 1998, after learning that his longtime associates and fellow Winter Hill gang members — Bulger and Stephen “The Rifleman” Flemmi — were FBI informants. He was released from prison in 2007.
Defense lawyer Hank Brennan said in court filings and again during a hearing Friday that anonymous sources have reported that Martorano, who agreed to testify against Bulger for his release from prison, has recently committed new crimes but that Johnson prohibited a state trooper from investigating him.
While prosecutors turned over some documents related to the claim last month, Brennan said he was outraged to learn only Friday that State Police may have conducted more investigations into the allegations than previously reported, and he asked for the information in a last-minute motion.
“The government apparently had information they did not tell us about,” Brennan said. “This is information that goes to the promised rewards and inducements of John Martorano. . . . It’s not only to impeach Mr. Martorano; it’s to impeach his handlers.”
The argument mirrors the allegations that Bulger, now 83, was protected for his crimes by his corrupt FBI handlers in the 1970s and 1980. He now faces a sweeping racketeering indictment accusing him of participating in 19 murders.
But Wyshak took issue with Brennan’s statements, appearing to take it personally. He argued that all proper documents were turned over to the defense team and said that the allegations that Martorano was still involved in crime were ultimately unfounded.
He also sought to defend Johnson, the State Police investigator who worked with the US Drug Enforcement Administration to investigate Bulger decades ago, in spite of resistance from the FBI and the Department of Justice.
It was only after a Boston Globe Spotlight Team report, and in federal hearings in the years thereafter, that Bulger’s secret relationship with the FBI was exposed.
“The government is not hiding anything here,” Wyshak said. “The bottom line is this is a lot of smoke, no substance to it.”
Wyshak said the trooper who reported that Johnson had interfered later denied making the allegation. He was not identified.
State Police refused to comment on the issue Friday, citing the ongoing court trial.
“The real culprit is a state trooper who went off the deep end and made allegations he could not support,” Wyshak said, accusing Bulger’s defense team of trying to make news headlines with the court filings, while simultaneously complaining that news outlets have been tainting the jury pool by reporting on other parts of the case.
Earlier Friday, Bulger’s defense attorney J. W. Carney Jr. filed a court motion in support of the request to ban Murphy and Cullen from the courtroom, alleging that Cullen’s Friday column on Bulger was sensational and would prejudice a jury.
Carney later said he would consider asking that the jury in the case be sequestered, which would prove to be costly and a hardship for jurors, if the Globe does not “show better judgment in the publication of columns that are designed to sell newspapers and for-profit books written by this columnist.”
But Casper rejected Carney’s argument when she granted the newspaper’s request to exclude Cullen and Murphy from the courtroom during testimony, noting the journalists’ constitutional rights in reporting on Bulger’s past and covering his trial.
Casper said she read the column Friday morning and indicated it seemed to support the Boston Globe’s argument, telling Carney, “From a 1st Amendment point of view I don’t know if it lends more support to your position, or more support to your opposing party’s point of view.”Milton J. Valencia can be reached at mvalencia@
globe.com. Follow him on Twitter @miltonvalencia.