A federal appeals court has agreed to hear James “Whitey” Bulger’s claims that the judge slated to preside over his case should step aside because of his close ties to the Justice Department and the FBI.
The First US Circuit Court of Appeals set a hearing for Jan. 8, and asked prosecutors to weigh in by Dec. 27. US District Judge Richard Stearns, who has denied that he has a conflict of interest, may also weigh in, if he chooses.
Earlier this month, Bulger attorney J.W. Carney Jr. asked the appeals court to issue an order forcing Stearns to vacate his rulings in which he refused to disqualify himself from the case.
Carney claimed in court papers that if Stearns is the judge when Bulger goes to trial next year, the trial “will go forward under a dark cloud that threatens to taint the integrity of every aspect of the proceedings.”
Bulger, 83, a long-time FBI informant, is scheduled to stand trial in June on charges of participating in 19 murders, racketeering, and extortion. He has vowed to take the stand in his own defense and claims he was promised immunity from prosecution for his crimes by Jeremiah T. O’Sullivan, the federal prosecutor who led the New England Organized Crime Strike during the 1980s and died in 2009.
Carney argued that Stearns’s ability to be impartial is questionable because he was a top-ranking prosecutor in the US attorney’s office in the 1980s—when Bulger alleges he was being protected by the government—and also is a close friend of FBI director Robert S. Mueller III.
The defense wants to call Stearns as a witness at the trial to question him about Bulger’s immunity claim, according to Carney.
Stearns, who was randomly assigned to preside over Bulger’s case, denied two requests by Bulger to disqualify himself, ruling that he was not involved in any cases related to Bulger while a prosecutor and there was no basis to call him as a witness.
Federal prosecutors have opposed the defense’s push for a new judge and have accused Bulger of intentionally trying to delay his trial.
Bulger, who fled just before his January 1995 indictment after being tipped by his former FBI handler, was captured in June 2011 in Santa Monica, Calif., after more than 16 years on the run.
Bulger’s sidekick and fellow FBI informant, Stephen “The Rifleman” Flemmi, also claimed that the pair had been promised immunity from prosecution in exchange for providing information against the Mafia. Only he said the FBI gave them immunity, with the caveat that they not kill anyone.
In 1999, a judge found that the FBI gave Bulger and Flemmi tacit approval to commit crimes and even protected them from prosecution, but there was no formal immunity agreement. Flemmi, who is serving a life sentence for 10 murders, is slated to testify against Bulger at his upcoming trial.