James “Whitey” Bulger’s lawyer argued before a federal appeals court Monday that the gangster did not get a fair trial because a judge barred him from testifying that he had immunity for his crimes, including murder.
Defense attorney Hank Brennan told the US Court of Appeals for the First Circuit that Bulger did not take the stand during his 2013 trial because the ruling prevented him from telling jurors that a now-deceased federal prosecutor had promised him immunity decades ago.
Bulger “had the right to testify to his relationship with law enforcement officers and the government,” said Brennan, urging the three-judge panel to overturn the former South Boston crime boss’s conviction for murders, racketeering, and other crimes.
Assistant US Attorney Randall E. Kromm argued, however, that Bulger, a longtime FBI informant, waived his right to appeal the judge’s ruling because he failed to offer evidence to support his immunity claim during pretrial hearings, then opted not to testify at trial.
“He chose not to testify,” Kromm said. “We’re left with really no sense of what he might have said.”
Bulger, who is serving two life sentences at a federal penitentiary in Sumterville, Fla., was not present during the Appeals Court arguments. He was convicted of participating in 11 murders while running a sprawling criminal organization from the 1970s to the 1990s that raked in millions from drug trafficking and extortion of bookmakers, drug dealers, and businessmen.
The Appeals Court panel — Judges William J. Kayatta Jr., O. Rogeriee Thompson, and David J. Barron — is expected to make a ruling in several months.
The relatives of some of Bulger’s victims listened to the arguments. Michael Donahue, whose father was fatally shot by Bulger in 1982, speculated that Bulger may have had immunity for some of his lesser crimes, but not for murder.
“I think he had some immunity, but I don’t think it was to kill and to tear the city apart,’’ Donahue said.
Before the trial, US District Judge Denise Casper ruled that Bulger could not present his claim that former prosecutor Jeremiah T. O’Sullivan promised him immunity decades ago because he offered no evidence to support it. She also found that even if O’Sullivan had made such a promise, he did not have the authority to do so. O’Sullivan, former head of the New England Organized Crime Strike Force, died in 2009.
During the trial, Bulger called it “a sham” and told the judge he had “involuntarily” decided not to testify because he felt he was “choked off from having an opportunity to give an adequate defense” and explain his conversations with O’Sullivan.
Bulger, who denies he was an informant, said he was given immunity for protecting O’Sullivan’s life, but failed to elaborate.
The gangster was warned by his corrupt former FBI handler to run shortly before his 1995 federal racketeering indictment and eluded capture for more than 16 years until his arrest four years ago in Santa Monica, Calif.
Former federal prosecutor Brian T. Kelly, who was part of Bulger’s prosecution team, said Bulger made a strategic decision not to testify because he would have faced days of rigorous cross-examination.
Bulger’s lawyer also argued that the conviction should be overturned because the government failed to disclose all of the promises it made to John Martorano, who killed 20 people and served only 12 years in prison in exchange for cooperating with the government against Bulger and others.
Brennan said testimony at trial indicated that Martorano’s agreement with the government guaranteed that he would not have to provide incriminating information against his brother or some of his friends, but prosecutors insisted that was not part of the deal.