US District Court Judge Denise J. Casper refused Tuesday to sequester jurors in the trial of James “Whitey” Bulger, saying from the bench that she was “not inclined to inconvenience these jurors.”
Casper said that jurors had not been warned that they could be sequestered when they were picked to serve seven weeks ago, and a sequestration order without notice could interfere with any plans they may have.
Bulger’s lawyer J.W. Carney Jr. had asked for a sequestration order, saying court rules allow for it in sensational and highly publicized cases.
Carney argued that the case has been unfairly sensationalized in the news media, specifically in pieces by a Boston Globe columnist, and that the reports could prejudice the jury.
Casper acknowledged that “I think we can agree this certainly is” a highly publicized trial. However, she noted, since Carney cited works only by the one Boston Globe columnist, “I don’t think these articles are representative” of the news media’s total coverage of the trial, she said.
The judge added that jurors have already been warned not to follow any media reports, and under court rules she retains discretion on whether to sequester them.
The decision was issued in the 32d day of Bulger’s trial, which is entering its final stages. On Tuesday, the defense called its second witness, Joseph Kelly, a retired FBI agent who served in the organized crime unit in Boston in the early 1980s.
Kelly testified that Bulger’s former handler, John J. Connolly Jr., was an informant coordinator in his unit at the time and that Connolly had unparalleled access to other agents’ informant files.
His testimony was used in a bid to support Bulger’s claims that he was never an informant, but that Connolly took information from other informants’ files and listed them under Bulger’s name so that he could claim he had a top-echelon informant working for him.
On Wednesday, the defense team could call Patrick Nee, a former Bulger associate who has been implicated in some of his alleged crimes. Nee’s lawyer has said his client will invoke his Fifth Amendment right against self-incrimination.
Bulger, 83, is charged in a sweeping federal racketeering indictment with participating in 19 murders in the 1970s and 1980s, extortion, money laundering, and possession of illegal weapons. Prosecutors have portrayed him as a longtime informant who killed several people after Connolly warned him they were cooperating against him.
Earlier Tuesday, defense witness Robert Fitzpatrick, a former assistant special agent in charge in Boston, reiterated his earlier testimony that he met Bulger in the early 1980s and that he did not believe the gangster met the FBIs standards of being an informant.
He said he was concerned when Bulger was telling him that he would not testify against someone, that he was not getting paid, that he paid others, and that he was not an informant.
However, Fitzpatrick said, his efforts to have the FBI’s relationship with Bulger closed always failed: Top supervisors in Washington, D.C. wanted to keep Bulger as an informant, he said.
Fitzpatrick, who first took the stand Monday, was used by Bulger’s defense team to describe corruption within the FBI in Boston at the time and to undermine the contention that Bulger was an informant for the FBI.
Assistant US Attorney Brian Kelly grilled Fitzpatrick during his cross-examination, however, suggesting that the former agent embellished and exaggerated his work in the FBI and his efforts to root out corruption.
Kelly’s blistering cross-
examination drew laughter in the courtroom at times, including from at least one juror. On one occasion, the prosecutor questioned why Fitzpatrick could not remember his own testimony, and he asked Fitzpatrick if medication he was taking impaired his memory.
“I don’t recall,” Fitzpatrick said.
Kelly also questioned why Fitzpatrick did not probe further when Bulger said he was bribing people. Fitzpatrick said it was because he never used the exact word “bribe.”
Kelly pointed out that Fitzpatrick was a top FBI supervisor in Boston in the early 1980s when Bulger had carried out many of his alleged murders.
“Weren’t you more concerned about your own bureaucratic career than rocking the boat?” Kelly said.