Prosecutor calls on federal magistrate to admonish Whitey Bulger defense lawyer for remarks to the press

A federal prosecutor called on a US District Court magistrate Friday to admonish the lawyer for James “Whitey” Bulger for his recent remarks to the press, complaining that the lawyer is trying to influence potential jurors in Bulger’s upcoming racketeering trial.

Magistrate Judge Marianne Bowler stopped short of admonishing the attorney, J.W. Carney Jr., but she asked him to reread a federal rule that governs how members of the court should deal with the media. The rule forbids lawyers from using publicity as litigation strategy.

Last month, Carney told reporters Bulger intends to take the stand in his defense, in the hope of convincing a jury that federal officials once granted him immunity for his many crimes because he was a long-time FBI informant.

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“I will ask you to respect” the rule, Bowler said.

Carney said he was answering reporters’ questions truthfully and would continue to do so.

“The US attorney’s office has spent the last 17 years demonizing James Bulger,” Carney said. “I don’t convene press conferences. I don’t issue press releases ... The government is charging that I’m poisoning the jury pool? Your honor, that doesn’t even pass the laugh test.”

The exchange came at the end of a tense, hourlong hearing in federal court where lawyers for Bulger, who is accused of participating in 19 murders, accused federal prosecutors of wasting time by handing over onerous amounts of discovery documents that in many cases were multiple copies of the same document. Some of those multiple copies are redacted in different places, making it difficult for the defense to figure out which pages are relevant. The defense has received 360,000 pages of evidence from the federal government.

The trial is scheduled to start in March 2013.

Bulger and his girlfriend, Catherine Greig, were fugitives for more than 16 years before their arrest in June 2011 in Santa Monica, Calif. Greig pleaded guilty in June to harboring a fugitive and was sentenced to eight years in prison.

The defense also complained that US Attorney Carmen Ortiz’s office is intentionally violating court orders governing what documents must be protected from public disclosure.

Federal officials have set aside 244,000 pages as protected documents, saying they can be disclosed only to Bulger’s defense team and not to the public. Some of those documents are newspaper articles and information found in books written about Bulger, defense attorney Henry Brennan, argued.

“They dump years and years of litigation on our laps,” he said. “There is no order. There is no reason why some documents are redacted.”

Assistant US Attorney Brian Kelly charged that the defense was trying to delay the trial by filing motion after motion complaining about the way the discovery has been provided.

The defense strategy, Kelly said, seems to be “you give us everything and we’ll complain when you do.”

As the case drags on, Kelly said he is increasingly worried about the health of prosecution witnesses, many of whom are elderly. One witness, Bulger’s one-time girlfriend, Teresa Stanley, died last month. Bulger turned 83 on Sept. 3.

“The defendant is old. The witnesses are old,” Kelly said. “Frankly, the prosecutors are getting old.”

“As long as you don’t say that the judges are getting old,” Bowler retorted.

Despite Brennan’s protests, Bowler said the government had complied with her orders for releasing discovery and it was now up to the defense to sift through the documents.

“Part of this is a problem you brought upon yourselves because you asked for [documents] to be produced in every which way they can be produced,” she said.

She advised the defense to meet with prosecutors and discuss the most crucial pieces of discovery they believe need clarity. She also asked prosecutors to list which documents have information that needs to be protected from the public, such as informants’ names or grand jury minutes.