It was another long day in the trial of James “Whitey” Bulger. Jurors had left the courtroom for the afternoon. And yet the lawyers were still trading barbs, this time over the list of witnesses who could testify for the defense.
“Objection,” the defense lawyer said.
“I don’t care about your objection,” the prosecutor responded.
US District Court Judge Denise J. Casper interrupted, once again, “All right, counsel, counsel, counsel.”
“I understand your argument,” she said, in a soft-spoken manner that quelled the exchange.
In one of the highest-profile trials in Boston’s history, Casper, who was on the bench for only seven months before Bulger was arrested in 2011, has faced challenging and critical tasks: tending to jurors, monitoring an angry defendant and his alleged victims, and settling combative lawyers, in what has become a consistent legal back-and-forth.
More challenges lie ahead as Bulger’s lawyers begin to present his defense this week. The gangster has indicated that he may testify, putting him and his legacy in a historic spotlight. If he takes the stand, already palpable tensions could erupt.
After 30 days of often-heated testimony, Casper has proven ready for the challenge, according to legal observers, who say she has been able to walk a fine line between taking too much control and letting a complex trial unspool.
“There’s always a balance to strike,” said Gerard T. Leone Jr., a former Middlesex district attorney and former first assistant US attorney in Boston, when Casper worked in the office. She also worked for Leone when he was district attorney.
“There’s a huge human element in trials, especially in ones like this, and I think it’s the competent judge who can keep control of the case but not stifle the extremely human element,” said Leone, who is now a lawyer with the private firm Nixon Peabody.
He added, “There’s always going to be anxiety from witnesses and lawyers, and jurors should be able to see that. It’s all part of the trial; this isn’t a video game.”
Tom Donahue, the son of one of Bulger’s alleged victims, Michael Donahue, whose family is perhaps most devoted to finding answers in the trial, said that Casper has found a balance between running the courtroom and recognizing people’s emotions. He thanked her for letting friend Steve Davis — the brother of another alleged victim, Debra Davis — stay in the courtroom after Davis started to yell at a witness.
“She understands the emotions everyone’s going through,” said Donahue.
Casper, 45, a mother of two young children, made history as the first black woman appointed to the federal court in Massachusetts. A graduate of Wesleyan University and Harvard Law School, she has worked in the private sector and as a state and federal prosecutor.
She has said in past interviews that she embraces the work of a public servant, a duty instilled by her father, a social worker, and mother, a librarian, from Long Island.
After the US Court of Appeals forced US District Court Judge Richard Stearns to recuse himself earlier this year because he was a top federal prosecutor when Bulger allegedly served as an informant for the FBI, Casper was randomly assigned to the case. Despite that late start and a large learning curve, she held steadfast on the June trial opening and surprised the state legal community in picking a jury in only days.
“We didn’t know who she was,” Donahue said, “But she has reminded people that she’s the boss in that courtroom, and we like that.”
The judge has held a rigid schedule throughout. Each day, she hears arguments from lawyers at 8:45 a.m., if not earlier. She avoids sidebars between the lawyers, if she can.
And court testimony begins at 9 a.m. sharp. If jurors are late, she reminds them of their obligation to be on time.
There have been many distractions and outbursts throughout the trial, in front of the jury and in motion hearings.
Before the trial even began, J.W. Carney Jr. and Assistant US Attorney Fred Wyshak engaged in a heated argument over allegations that one of the key witnesses was still committing crimes and that State Police were covering it up. Casper settled the issue after a lengthy hearing, without disrupting the trial start.
The judge has had to settle Wyshak on other occasions, telling him in a recent exchange, “Mr. Wyshak, you can be seated. I’ll listen to Mr. Carney now.”
The judge also had to quell an expletive-laden outburst in front of the jury between Bulger and his former protégé, Kevin Weeks.
“Hey,” she barked.
“Mr. Bulger, let your attorneys speak for you. Mr. Weeks, here’s how this works: You answer the questions, OK? Mr. Carney, can you finish your questions?”
Everyone listened, and abided.
There have been lighter moments as well, with the judge at times laughing at witnesses’ exchanges with the attorneys, a disarming laugh that can break the tension of the courtroom. But she will just as quickly chide members of the public who talk during sidebars.
Steve Boozang, an attorney who represented a government witness, former cocaine dealer Anthony Attardo, said he thought Casper was thorough in handling objections of his client’s testimony.
“I think she has control over her courtroom, as well as any seasoned judge who has been around 20 years more than her,” he said. “”I think she’s doing a very commendable job with probably one of the most difficult cases in our lifetime.”
Former US District Court judge Nancy Gertner, who teaches at Harvard and recently joined the law firm Neufeld Scheck & Brustin in a special counsel role, said Casper’s decisions have and will continue to dictate the course of the trial.
Her success in picking a jury so quickly will ultimately dictate whether the jury deliberates properly, for instance.
But Gertner said that Casper has undertaken a unique case that any judge, regardless of their years on the bench, would find complex.
“Everyone would be a rookie in a case like this,” she said. “It’s a unique case in all respects. Controlling a case is the only way to get it tried.”
Casper must still decide on several legal issues, such as jury instructions before deliberations. She must also decide whether the defense can call Patrick Nee, one of Bulger’s former associates, who says he will invoke his Fifth Amendment right against self-incrimination.
One recent morning, she reminded lawyers that the legal issues continue to evolve as she revisited an earlier ruling on hearsay evidence.
“This case doesn’t leave my mind when the trial rests for the day,” she said.