Lawyers for James “Whitey” Bulger urged a federal appeals court Thursday to overturn the gangster’s conviction for participating in 11 murders, arguing that he did not get a fair trial because the judge refused to let him tell jurors that he had been promised immunity for all of his crimes decades ago.
That ruling “constitutionally deprived Mr. Bulger of his right to present an effective defense’’ and “stripped him of his right to testify about how he was able to avoid prosecution for almost twenty-five years,” Bulger’s lawyers wrote in a 201-page filing to the US Court of Appeals for the First Circuit.
The lawyers, Hank Brennan and James Budreau, wrote that Bulger had little choice but to not take the stand during his trial last summer because US District Judge Denise Casper barred Bulger from telling jurors about his assertion that a now-deceased federal prosecutor had promised him immunity for all crimes, including murder.
“The court ruled that the defense could not raise the immunity defense at trial in any form, including the defendant’s own testimony at trial,” the lawyers wrote. “This error effected the fundamental fairness of Mr. Bulger’s trial and his convictions should be automatically reversed as a result.”
Prosecutors have 30 days to file a response, although they may seek an extension.
Bulger, 84, who is serving two consecutive life sentences at the federal penitentiary in Tucson, told the judge last August during his eight-week trial in federal court in Boston that his trial was “a sham.”
Bulger told the judge he was prevented from proving that the prosecutor, Jeremiah T. O’Sullivan, promised him immunity in return for “my protection of his life.”
Before the trial, Casper barred the immunity defense, ruling that Bulger had offered no documentation to support his assertion and that even if O’Sullivan had made such a promise, he had no authority to do so. O’Sullivan, the former head of the New England Organized Crime Strike Force, died in 2009. In its brief, the defense argued that O’Sullivan did have that authority.
Former assistant US attorney Brian T. Kelly, who was part of the team that prosecuted Bulger, said several judges offered Bulger the opportunity to raise an immunity defense prior to trial, but he made a tactical decision not to do so.
“He had no license to kill or any other immunity agreement, and he repeatedly failed to take the opportunity to present it,” Kelly said.
At the time of last summer’s trial, a former investigator offered another reason Bulger did not testify: He would have faced a blistering cross-examination about his role in the murders and other crimes.
A federal jury in Boston found Bulger guilty last August of participating in 11 murders, including the strangulation of a woman, while running a sprawling criminal enterprise from the 1970s through the 1990s that raked in millions from drug trafficking.
Bulger, who fled shortly before his January 1995 indictment, was a fixture on the FBI’s 10 Most Wanted list until his capture in Santa Monica, Calif., in June 2011. While Bulger was a fugitive, his corrupt relationship with the FBI was exposed in lengthy court proceedings and congressional hearings. His former associates cooperated with the government against him in exchange for controversial and lenient deals for their own crimes.
The defense spent much of the trial trying to rebut the FBI’s admission that Bulger was an informant from 1975 to 1990. His lawyers said former FBI agent John J. Connolly Jr. fabricated Bulger’s informant file to cover up the fact that he was taking bribes from the gangster and leaking information to him.
Bulger’s former sidekick, Stephen “The Rifleman” Flemmi, testified during the trial that he and Bulger were longtime informants who paid Connolly more than $240,000 over a decade. He said Connolly warned them when other informants were cooperating against them, prompting them to kill several people.
The defense appeals brief says Bulger “intended to show the systemic corruption that existed in the federal government during the 1970s through 1990s and the political and institutional motivations that led Jeremiah O’Sullivan and the Strike Force to provide immunity to James Bulger.”
Bulger’s lawyers also attacked the credibility of the government’s witnesses and accused the US Justice Department of making “unprecedented deals with organized crime figures and murderers in an attempt to insulate themselves from civil liability and cover up their practices.”
The defense also accused prosecutors of withholding evidence regarding a state trooper’s assertion that a superior frustrated his efforts to investigate allegations that government witness John Martorano, who served only 12 years for killing 20 people, was involved in ongoing criminal activity.
The jury found prosecutors proved Bulger participated in 11 of the 19 murders he was accused of in the 1970s and 1980s. Those included the strangulation of Deborah Hussey; the assassination of Tulsa businessman Roger Wheeler; and the slayings of Paul McGonagle, Edward Connors, Thomas King, Richard Castucci, Brian Halloran, Michael Donahue, John Callahan, Arthur “Bucky” Barrett, and John McIntyre.
Jurors found prosecutors failed to prove Bulger was involved in the slayings of seven others: Michael Milano, Al Plummer, William O’Brien, James “Spike” O’Toole, Al Notarangeli, James Sousa, and Francis “Buddy” Leonard.
Jurors were unable to reach a verdict on whether Bulger was involved in the strangulation of Debra Davis, in 1981.