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The Boston Globe

Opinion

joan vennochi

Should Bulger judge recuse himself?

J.W. Carney Jr. may very well be a grandstanding criminal defense lawyer who is working hard to stall justice on behalf of his infamous client, James “Whitey” Bulger.

But Carney raises a legitimate issue when he questions the impartiality of Richard G. Stearns, the judge who is presiding over the case of the notorious gangster, who is charged with 19 murders.

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Stearns refused to recuse himself, writing in a July 17 memorandum that “I have no doubt whatsoever about my ability to remain impartial at all times while presiding over this case.” However, the test is not whether Stearns has any doubts. It’s whether a reasonable person has them. And a reasonable and well-informed person — one who knew of Stearns’s prosecutorial career in Boston and longtime friendship with FBI director Robert Mueller — just might.

Stearns was an assistant US attorney and chief of the criminal division during many of the years that Bulger was allegedly committing heinous murders. Yet he writes that he knew zero about Bulger’s secret deal with the FBI and had no knowledge “of any case or investigation” in which Bulger was “a subject or a target.”

It’s true Stearns was not a member of the New England Organized Crime Strike Force, which dealt directly with Bulger. But he worked in the same office and as chief of the criminal bureau, everything criminal would have gone through him, such as search warrants and wire taps.

Even if a reasonable person believes Stearns knew nothing about the Bulger deal, would that same reasonable person believe he is now unbiased about the twisted ties between Bulger, the FBI, and federal prosecutors?

As WBUR reporter David Boeri put it in a recent report regarding Stearns’s recusal: “So ask yourself: After 20 years of investigative reports, books, movies, congressional inquiries, Bulger’s years of success avoiding capture and the hearings that blew the cover off Bulger’s relationship with the FBI, might you have doubts or suspicions that a judge who worked in the US Attorney’s Office at the time can be impartial?”

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And what about Stearns’s close relationship with the head of the FBI?

Boeri’s radio report also included a clip from a 2006 ceremony that was held to unveil a portrait of Stearns. During remarks as the featured speaker, Mueller, who flew in from Washington, said he was honored to count Stearns “as a friend and mentor.” Stearns, in turn, called Mueller’s attendance “the greatest tribute that a friend could pay.” That closeness raises questions about the judge’s eagerness to dwell on embarrassing information about the FBI’s deal with the devil.

The Bulger case ended up in Stearns’s court a year ago, after the gangster was finally captured after years on the lam. Prosecutors asked that racketeering charges against him be dropped. The rationale, they said, was to proceed immediately to the murder charges, and finally get justice for the long-suffering families of Bulger’s victims. Stearns had been assigned the original murder case, so he kept it.

But those prosecutorial maneuverings also got the case away from Mark L. Wolf, the federal judge who first exposed the corrupt relationship between Bulger and the FBI. Wolf is known for his meticulous and time-consuming approach to his job — as well as for his toughness on government lawyers, for whom he shows little mercy.

A surprise part of Bulger’s defense is Carney’s charge that his client had entered into an immunity agreement with the federal government in the 1970s — and the agreement prevents prosecutors from charging Bulger with crimes, including murder.

Carney is pledging to name names and identify prosecutors who allegedly cut the deal with his client. His threat is that Stearns was and is relevant to the decision; that Bulger got immunity from someone with whom Stearns worked closely and that because of that, Stearns cannot be an impartial judge.

At a minimum, Stearns’s refusal to take himself off the case gives Bulger an issue to raise on appeal. But there’s more at stake. If Carney is bluffing, he will be revealed as the circus ringmaster that prosecutors describe. If he’s not, Stearns could be revealed as one more person caught up in the web of dishonor between Bulger and the FBI.

Joan Vennochi can be reached at
vennochi@globe.com
. Follow her on
Twitter@Joan_Vennochi.

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