Prosecutors and defense lawyers traded fiery exchanges Monday during a hearing on the eve of James “Whitey” Bulger’s federal racketeering trial, previewing what is expected to be a long and contentious courtroom battle over the fate of one of Boston’s most notorious figures.
US District Judge Denise J. Casper issued a series of rulings that help lay the ground rules for the months ahead. She granted the prosecution’s request to present the entire FBI file on Bulger’s years as an informant. But she sided with the defense in ordering the government to strike the words “Bulger Group” from the indictment and instead refer to the alleged gang as a group of criminals.
The judge also ruled that relatives of Bulger’s alleged victims may testify and identify photographs of their loved ones and recall when they died, or disappeared. But she said they may not describe the impact of their loss, because the testimony would be too prejudicial.
Bulger, 83, wearing an orange jail-issued jumpsuit, sat solemnly between his two lawyers, frequently alternating between two pairs of eyeglasses, using one pair to read documents and another to look up at the judge as she methodically dealt with a battery of motions.
The only time Bulger glanced toward the spectator section was on his way out of the courtroom, when he nodded and slightly smiled at his two nieces. They were the only ones seated in a row reserved for his family.
Assistant US Attorney Fred Wyshak told the judge that prosecutors plan to introduce the FBI informant files of Bulger and his longtime partner, Stephen “The Rifleman” Flemmi, detailing information the pair provided to the FBI about Mafia rivals and members of their own gang.
“Obviously, it’s the theory of the prosecution that John Connolly was a corrupt FBI agent, that he was on Mr. Bulger’s payroll,” said Wyshak, alleging that Connolly leaked information to Bulger and Flemmi over some 20 years that led to murders and protected them from prosecution.
Connolly is serving a 40-year sentence for his role in a 1982 gangland slaying in Florida. Flemmi, who is serving a life sentence for 10 murders, is slated to be a key government witness in the case against Bulger.
Henry Brennan, who along with J.W. Carney Jr. represents Bulger, said the defense agreed that Bulger’s informant file should be introduced, but contends that Connolly, and not Bulger, provided all the information contained in the file. Bulger has steadfastly denied that he was an FBI informant.
Bulger faces 32 counts from a sweeping racketeering indictment, including charges that he participated in 19 murders in the 1970s and 1980s; extorted bookmakers, drug dealers, and businessmen; laundered money; and illegally stockpiled guns.
Prosecution and defense also sparred over whether jurors should be told that another government witness, longtime Bulger associate Kevin Weeks, failed a polygraph test when asked whether he helped Bulger and Flemmi force a man to sell his South Boston liquor store in 1984.
Initially, Weeks insisted it was not an extortion because Stephen Rakes had approached the gangsters to buy his store. But after failing the lie detector test about the shakedown, Weeks admitted that he brought a gun to the confrontation and said Rakes was forced to sell the store after trying to back out of the deal.
Rakes has disputed that version and insists he never wanted to sell his store.
Weeks pleaded guilty to extorting the store and being an accessory to five murders and served five years in prison.
Prosecutors argued that jurors should not be told about the polygraph because such tests are inadmissible in court, and ultimately Weeks admitted to the extortion.
But, Carney said, the defense should be allowed to tell jurors that Weeks took a polygraph before changing his story.
“Otherwise the jury will be sitting there and say, ‘Weeks says one thing, then he says another thing; what happened in the middle?’ ” Carney said. “Was he beaten with a club? Was he offered money? Was he given a whiskey?”
Casper took the polygraph issue under advisement.
Prosecutors complained that Bulger’s lawyers were tainting the potential jury pool and violating local federal court rules governing lawyers by talking to reporters about the case and attacking the credibility of the government’s witnesses.
“We don’t want the defense to go outside and give their theories to the world because they can’t do it in the courtroom,” said Assistant US Attorney Brian T. Kelly, urging the judge to prohibit Bulger’s lawyers from giving impromptu press conferences outside the courthouse.
But Carney fired back that prosecutors and investigators gave numerous interviews vilifying Bulger while he was on the run.
Bulger, who fled shortly before his 1995 racketeering indictment, was a fixture on the FBI’s 10 Most Wanted list before he was captured on June 22, 2011, living in Santa Monica, Calif.
“The reality is that for the last 20 years the government has done everything it can to pollute the jury pool,” Carney said. “It has demonized James Bulger so that he is recognizable nationwide. . . . They can’t have it that way and have the defense lawyer for the defendant stand mute.”
The judge did not prohibit Carney from talking to reporters, but ordered him to follow the court rules.
Prosecutors accused the defense of adding witnesses to its list as a ploy to have them covered by a sequestration order that will prevent them from attending the trial.
Those witnesses include the government’s key investigators, Drug Enforcement Administration agent Dan Doherty and State Police Detective Lieutenant Stephen Johnson, and a number of journalists and authors.
The Boston Globe’s lawyers asked Casper to allow two Globe staff members, columnist Kevin Cullen and the writer of this report, to cover the Bulger trial even though Carney has listed them as potential defense witnesses.
The journalists have covered organized crime in Boston since the 1980s, the filing said, and are the authors of a recent book about Bulger and the hunt for him.
Bulger’s lawyers also put Boston Herald columnist and talk show host Howie Carr and former Globe reporters Dick Lehr and Gerard O’Neill, who have all authored books on Bulger, on the witness list.
Casper has yet to rule on whether the witnesses can attend the trial.
Shelley Murphy can be reached at firstname.lastname@example.org.
Correction: Because of an editing error, former Globe reporter Gerard O’Neill’s name was misspelled in an earlier version of this story.