Even in a notorious case that now spans decades, Friday’s hearing in US District Court in Boston was something of a landmark.
An older-looking James “Whitey” Bulger made his first public appearance in the South Boston courthouse in many months. But, perhaps more significant, Bulger got his first look at the woman who will play a central role in his future, District Court Judge Denise J. Casper.
Bulger’s defense attorney, J.W. Carney Jr., aggressively insisted in court that Casper — who entered the case just 42 days ago — take her new duty to heart and not repeat the mistakes of her predecessor on the case, Judge Richard Stearns.
Carney bluntly told Casper that if she does not allow Bulger to describe what he claims was an agreement with federal law enforcement that he would would be immune from prosecution for any crimes — including murder — she will miss her chance to “get it right.”
“Judge Stearns, I respectfully say, got it wrong,’’ Carney said. “If the court doesn’t get it right . . . that will mean James Bulger would not have had an opportunity to have a fair trial.’’
Bulger, reportedly a longtime FBI informant, faces charges under a sweeping federal indictment that alleges he committed 19 murders. His trial is scheduled to start in June and could last three months.
Casper was randomly assigned to the trial on March 15 after the Circuit Court for the First Circuit agreed with Carney and ruled that Stearns must step aside because as a former Department of Justice official, he had a potential conflict of interest.
One major ruling Stearns made before he was taken off the case involved the immunity issue. Stearns had ruled that Bulger could not talk about that on the witness stand because no one in federal law enforcement could grant Bulger, or anyone else, what the judge called a “license to kill.’’
Carney wants Casper to vacate that decision. The attorney said he is confident that if Bulger, 83, were to be convicted this year without being allowed to testify about the immunity, a federal appeals court would conclude the trial was flawed and order a new one.
The reputed gangster looked thin in court Friday. He had shaved the beard he was wearing when captured in California in June of 2011.
He wrote notes as he sat watching the proceedings and talked with his lawyer.
No family members sat in the section reserved for Bulger’s relatives.
The South Boston mobster’s lawyers have repeatedly filed motions demanding that the US attorney’s office and the Department of Justice in Washington scour their files in order to locate documentation of the immunity agreement.
Bulger’s lawyers say he denies he was an informant, but asserts he was granted immunity by Jeremiah T. O’Sullivan, a former federal prosecutor who died in 2009. They have not said what he allegedly did in return for immunity.
Carney told reporters Friday that Bulger wasn’t captured until after O’Sullivan died and was a major player in Boston’s criminal underworld for 25 years, but was never prosecuted.
But Assistant US Attorney Fred Wyshak bluntly called the Bulger defense strategy a “frivolous’’ search for the “Holy Grail.’’
Over the years, Wyshak said, the federal government has been sued 19 times by relatives of Bulger’s alleged victims and was also forced to search its files for two other cases. Bulger, he said, has all the documents there are to get.
“There is no discovery that shows he is not an informant,’’ Wyshack said. “The defendant, James Bulger, was an informant for the FBI. He was an informant for the FBI for 15 years. He provided information that assisted him in eliminating his enemies’’ in the Mafia and in his native South Boston.
Casper took the matter under advisement.
Bulger, who fled just before his January 1995 indictment after being tipped by his former FBI handler, was captured in Santa Monica, Calif., after more than 16 years on the run.
Bulger’s sidekick and fellow FBI informant, Stephen “The Rifleman” Flemmi, also claimed that the pair had been promised immunity from prosecution in exchange for information against the Mafia.
In 1999, a judge found that the FBI gave Bulger and Flemmi tacit approval to commit crimes and even protected them from prosecution, but there was no formal immunity agreement.
Flemmi, who is serving a life sentence for 10 murders, is slated to testify against Bulger at his trial.