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Lawyers for Boston mobster James “Whitey” Bulger have asked a federal appeals court to remove the judge scheduled to preside over Bulger’s trial on murder charges.
With just 15 minutes for each side to make its case at Tuesday's hearing, both sides made bold assertions.
"The trial must be overseen by a judge who is not connected to the most infamous period in federal law enforcement history in Boston," said defense attorney J.W. Carney.
Carney linked the following points:
- Judge Richard Stearns had worked as the chief of the criminal division for the U.S. Attorney's Office in the 1980s
- The 1980s were when Bulger was at his greatest power
- Bulger was never prosecuted because he had been granted immunity for past and future crimes, not by Stearns, but by someone else in the Department of Justice
All these points raised questions, Carney said, about Stearns' ability to be impartial.
"If James Bulger was allegedly committing dozens and dozens of crimes including murders," Carney said, "why wasn't he prosecuted?"
At Tuesday's hearing, the judges requested proof Bulger received immunity from the Department of Justice. They wanted to know if there was anything in writing and when he got it.
Carney said he was reserving the answers and his details for the trial. That didn't go over well with the judges.
"The burden to make a clear case for recusal is Mr. Bulger's," said Judge Bruce Selya.
"You've lost me," Selya said in questioning Carney's inference.
And Judge Sarah Lynch suggested Carney's call for recusal was not "on the merits" but "for tactical reasons."
Inside the courtroom, where the proceedings take place without cameras or microphones, the prosecutor derided the defense claims, saying they had "no facts, no proof."
But Judge Selya interrupted, arguing that they did know some facts, including, he pointed out, that Bulger's relationship with the FBI and the Justice Department has been documented as "thoroughly corrupt," and that, at the time, Judge Stearns occupied a position of great responsibility.
Carney — who unlike the prosecution comments outside the courthouse — held up Stearns' previous statements about his stint in the U.S. Attorneys Office in refusing to recuse himself from the Bulger trial.
"He said during that entire period he was never aware at any time of any investigation by anyone of James Bulger," Carney said.
And that, coming from a man who was the chief of the criminal division, Carney told the court, "flies in the face of common sense and experience."
There were questions that Judge Stearns might have clarified. A fellow former prosecutor appears to have contradicted Stearns' claim he had no knowledge of any investigation of Bulger, and Stearns had misstated the years in which he had been in the U.S. Attorney's Office. But Judge Stearns declined to appear as he was invited to by the court. So those questions remain unanswered.
Might a reasonable person question Stearns' ability to be impartial? That is one test for recusal.
"My concern is about public confidence and public perception," said Judge Selya. "I'm concerned about the public perception as to whether the defendant can get a fair trial under these circumstances."
And that test — of what reasonable members of the public might think — may well be the standard upon which the judges decide. But they'll need to do so soon if the trial — set for June — is to stay on schedule.
This post was updated with Morning Edition feature content.
This program aired on January 8, 2013.
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