A federal judge delivered a major blow to James “Whitey” Bulger’s defense on Thursday, ruling that the gangster cannot ask jurors at his upcoming trial to consider his contention that the government granted him immunity for all of his crimes, including murder.
US District Court Judge Denise J. Casper, who took over the case in March, wrote in a 31-page opinion that Bulger’s “claimed immunity is not a defense to the charged crimes to be presented to the jury at trial.”
Casper said Bulger’s claim of immunity was a question of “contract law,” which he should have asked the court to resolve prior to trial as part of a motion to dismiss the sweeping federal racketeering indictment that alleges he participated in 19 murders in the 1970s and 1980s.
Bulger’s failure to ask the judge to rule on his immunity assertion does not give him the right to present it to a jury, she wrote.
Lawyers for Bulger did not immediately respond to questions about the impact Casper’s ruling would have on his defense, but several prominent defense attorneys described it as a major setback.
“It keeps the jury from hearing the defense,” said Boston lawyer Harvey Silverglate. “I think this decision is unfairly protective of the Department of Justice in that the public will never get to learn in more detail about the department’s relationship with Whitey Bulger. It would be very important for the credibility of the court and the Department of Justice if a jury were able to hear what actually happened.”
Anthony Cardinale, a Boston lawyer, said, “It guts his defense and now he’s left to deal with his comeuppance. . . . Unfortunately, this is giving this rat the opportunity to try to maintain a bitter dignity and say, ‘I could have won the case, but the government conspired against me.’ ”
Casper’s ruling essentially left intact a decision made in March by her predecessor, Judge Richard G. Stearns, who was ordered by a federal appeals court to recuse himself from Bulger’s case because of public perception that he may not be impartial. Stearns was a high-ranking prosecutor in the US attorney’s office during the time that Bulger says he was promised immunity.
Bulger, 83, says that former federal prosecutor Jeremiah T. O’Sullivan, who died in 2009, verbally promised him immunity, which would never expire, for all of his crimes, including murder. He has provided few details about the alleged immunity, including when it was granted.
The gangster also says he was never an FBI informant, despite documentary evidence and witness testimony in prior court proceedings that indicated he was an informant from 1975 to 1990. After being warned by his former FBI handler, John J. Connolly Jr., to flee shortly before his 1995 racketeering indictment in Boston, Bulger evaded capture for more than 16 years. He was finally arrested in June 2011 in Santa Monica, Calif.
Federal prosecutors have ridiculed Bulger’s immunity assertion as “fantastical” and absurd and urged the court not to let him present it at trial. In his ruling in March, Stearns concluded that no one in the federal government was authorized to give Bulger a “license to kill.”
Casper adopted Stearns’ findings and wrote that Bulger has not offered any evidence that he detrimentally relied on any immunity promise, even if it was made.
“There is no suggestion that Bulger took any action to his disadvantage in reliance upon this promise,” Casper wrote. “He did not, for example, waive any constitutional right, incriminate himself or offer to plead guilty in reliance on same.”
Casper said Bulger could still present two immunity-related defenses to the jury at his trial, slated to begin June 10. She ordered his lawyers to notify the court by May 6 if they plan to argue the other defenses.
One argument would require Bulger to prove that he committed crimes at the request of an authorized government official. The other would require him to show government entrapment.
“Entrapment is a narrow and very difficult defense to prove,” Silverglate said. “The defendant has to prove that the germ of the idea for the crime was planted in his brain by the government agent and that is very difficult when the defendant has a history of engaging in violent crime.”
Boston defense lawyer Bernard Grossberg said Casper’s ruling is clearly a setback for Bulger’s defense plans, but does not mean Bulger and his lawyers are without any tools to use once the trial begins. He noted that there apparently is no forensic evidence tying Bulger to any of the murders he is accused of participating in.
Moreover, said Grossberg, the key witnesses against him — Bulger’s former underworld cohorts Stephen “The Rifleman” Flemmi, Kevin Weeks, and John Martorano — have benefited by cutting lenient deals with federal prosecutors while Bulger was on the run.
Martorano served just 12 years for killing 20 people; Weeks served five years for being an accessory to five murders; and Flemmi was spared the death penalty and is serving a life sentence for 10 murders.
“An eyewitness who confesses to murder and then is walking around, someone in that situation would say anything. Think about it,’’ Grossberg said.
He also said Bulger could actually benefit by facing off against immunized former gangsters because under federal law, jurors are told before they begin deliberations that they should judge the words of an immunized witness with some skepticism. “Their testimony has to be closely scrutinized,’’ jurors will be told, Grossberg said.
Grossberg wondered why federal prosecutors are so determined to keep Bulger from telling jurors his account of his relationship with federal law enforcement figures.
“He could say he got immunity from the president. The jury might say, ‘You’re crazy,’ ’’ said Grossberg. “It might not be believable. But they should let them.’’
globe.com. Follow him on Twitter @JREbosglobe. Shelley Murphy can be reached at firstname.lastname@example.org. Follow her on Twitter @shelleymurph.