BOSTON — James “Whitey” Bulger cannot present evidence to a jury about his claim that he was given immunity for future crimes, including murder, a federal judge ruled Monday.
U.S. District Judge Richard Stearns found that an immunity agreement “cannot as a matter of public policy license future criminal conduct.”
“The court concludes that any grant of prospective immunity to commit murder was without authorization and is hence unenforceable under any circumstance,” Stearns wrote.
Stearns, however, did not immediately rule on Bulger’s claim that he received immunity for past crimes.
“Without knowledge of the date of the alleged agreement, however, the court is unable to say whether this determination nullifies defendant’s claim of immunity in its entirety (again, assuming proof of its existence),” he wrote.
Stearns gave lawyers additional time to submit written arguments and indicated he will hold a pretrial hearing on Bulger’s claim of immunity for past crimes.
The ruling was a blow to Bulger’s lawyers, who want to use the claim of immunity as their defense during his trial.
Bulger, the former leader of the Winter Hill Gang, is accused of participating in 19 killings. His trial is scheduled to begin June 6.
Bulger, now 83, was a fugitive for 16 years after fleeing Boston in late 1994 just before he was indicted. He was captured in Santa Monica, Calif., in June 2011.
Bulger claims he received immunity from federal prosecutor Jeremiah O’Sullivan, who died in 2009.
In his ruling, Stearns agreed with prosecutors that he should rule on Bulger’s immunity claim before trial.
“Resolution of defendant’s immunity claim requires an inquiry only into the existence, scope, and validity of the alleged agreement he made with New England Organized Crime Strike Force Chief Jeremiah O’Sullivan,” Stearns wrote.
“It does not require the presentation of evidence regarding the commission of any of the nineteen murders or other crimes with which defendant is charged. The government’s motion is thus not only appropriately raised, but calls for pretrial resolution.”
Stearns noted that Bulger has the right to testify in his own defense at trial, regardless of the court’s ruling on his immunity claim. But he also noted that testifying in one’s own defense can be limited by rules relating to “materiality and perjury.”
Stearns said there has been a “paucity of information” provided by Bulger’s defense regarding his claim of immunity. Bulger’s lawyers have said only that O’Sullivan — some time before December 1984 — promised Bulger immunity from prosecution for all past and future crimes, up to and including murder.
Bulger’s lead attorney, J.W. Carney Jr., could not immediately be reached for comment Monday. A spokeswoman for U.S. Attorney Carmen Ortiz declined to comment.
Bulger’s lawyers have argued that if the judge prevents Bulger from presenting a defense based on his immunity claim, it will deprive Bulger of his right to a fair trial.
“Whether or not the defendant was granted immunity is at the core of this case,” the defense wrote in a court filing Friday.
Bulger’s lawyers have asked a federal appeals court to remove Stearns from the case.
Carney argues that Stearns has a conflict of interest because he worked as a prosecutor in the U.S. attorney’s office in Boston at the same time as O’Sullivan. The 1st U.S. Circuit Court of Appeals has not indicated when it will rule on the request.
Carney recently stunned prosecutors when he said Bulger was never an FBI informant. In documents filed in court Friday, prosecutors said the claim that Bulger was not an FBI informant, but still had immunity is “both strange and unsubstantiated.”