Should Bulger Trial Judge Recuse Himself?

BOSTON — At the eye of the storm created by James "Whitey" Bulger's announcement that he will testify at his own trial is the judge in the case, Richard Stearns.

Bulger, who's charged with 19 murders, wants Stearns to step down. The judge has emphatically refused. And this week Bulger's attorney, J.W. Carney, shot back:

Our client believes he will get fairer consideration on the issue of immunity from the jury than he will from the person who was the head of the Criminal Bureau of the U.S. Attorney's Office in the '80s.

“Head of the Criminal Bureau” is a reference to Stearns. And at issue is whether Stearns' impartiality "might reasonably be questioned."

In his written opinion, Stearns asserted: “I am confident no reasonable person could doubt my impartiality.”

But a nationally recognized expert on judicial ethics told me Stearns should step down because of the appearance of bias.

Tests For Recusal

There are two tests for deciding whether a judge should disqualify, or recuse, himself from a trial. Does the judge have a bias? That's the first test. The second is whether a "reasonable person might question his impartiality."

Now comes Judge Stearns, who, in the 1980s, was a top-ranking prosecutor in the U.S. Attorney's Office here in Boston.

Why might that matter? To law professor Monroe Freedman, of Hofstra University, it matters because Stearns “was part of the [U.S.] Justice Department in that office at the very time that the worst of the scandal was taking place.”

To understand the context, consider what that scandal was. In other words, consider what makes Bulger different from your average accused multiple murderer.

“Four decades of corruption involving the Justice Department,” stated U.S. Rep. Dan Burton when his committee investigated the government’s relationship with Bulger back in 2002.

Burton added: “Informants committed murders with impunity, killers were tipped off so they could flee before being arrested, local investigators of local murders and drug dealing and arms smuggling were compromised.”

Murders, violence, corruption of FBI agents and government stonewalling — all while Bulger was a prized and protected informant. Burton called the FBI's secret use and protection of Bulger "one of the greatest failures in the history of law enforcement."

Here's how an out-of-state detective, Sgt. Mike Huff, of Tulsa, Okla., described his experience with the Justice Department here in Boston: "I had never been exposed to such a cesspool of dirt and corruption."

Three letters are stamped onto the Bulger case like the brand on a steer: F-B-I. The revelation of the scandal prompted public outrage and distrust of the Justice Department that continues to this day. (Why do you think so many people believed that the FBI wasn’t interested in catching the Bulger or, worse yet, was keeping him in hiding somewhere?)

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Stearns points out that he worked in a separate section of the U.S. Attorney's Office and had nothing at all to do with the independent Organized Crime Strike Force that dealt with Bulger. He says he never had any knowledge of any case or investigation involving Bulger.

But Hofstra's Freedman, a renowned pioneer in the field of judicial and legal ethics, said, “That's much too subtle a distinction for the public and certainly for the skeptic.”

Freedman, who actually advises the Justice Department, says the verdict on Stearns isn’t even close.

“I think the judge should have recused himself at the outset," Freedman said. "That's what should have happened."

Congress and the Supreme Court have made the test for recusal a very broad one, Freedman says. Their intent in doing so was to minimize the public's suspicions and doubts about judges.

Under the judicial code, the appearance of bias is just as important as the reality of bias. According to Freedman, Judge Stearns has made a mistake in overlooking that.

“For a judge to write an opinion and ignore the two Supreme Court cases on the statute he's discussing,” said Freedman with a chuckle of surprise, “is in itself very telling.”

Freedman says that in those two cases Stearns overlooked, the Supreme Court referred to the reasonable person as a member of the public and a skeptic.

So the test, in this case, is whether the public or skeptics might question — “might, not would, might question” — whether Stearns is impartial.

So ask yourself: After 20 years of investigative reports, books, movies, congressional inquiries, Bulger's years of success avoiding capture and the hearings that blew the cover off Bulger's relationship with the FBI, might you have doubts or suspicions that a judge who worked in the U.S. Attorney's Office at the time can be impartial?

When Massachusetts Lawyers Weekly recently polled its readers — almost all lawyers — 55 percent of respondents said Stearns should have recused himself. In other words, a majority had doubts.

'Friend And Mentor' To FBI Director

Another, perhaps more substantial issue for Stearns that may rise to a possible conflict of interest concerns his close longtime friendship with Robert Mueller, the director of the FBI. After all, as Freeman pointed out, “The FBI is implicated here.”

I presented Freedman with accounts from former and current associates of Stearns and Mueller and of the friendship between the two men. Mueller is said to dine at Stearns' home during his travels to Boston. And when Stearns was initially picked by President Clinton to be FBI director, as reported at the time, one associate recalled the talk that Stearns would bring Mueller to Washington as his deputy.

In 2006, when Judge Stearns was the honoree at a ceremony to unveil his commissioned portrait, Mueller and his wife flew to Boston as honored guests.

Mueller was a featured speaker. He concluded his warm remarks about Stearns by saying, “I am indeed honored to be part of this ceremony and honored to count him as a friend and mentor.”

Stearns, his “friend and mentor,” reciprocated, calling Mueller's attendance "the greatest tribute that a friend could pay.”

Added Stearns: “It is on public servants like Bob Mueller that our safety and our preservation as a nation depend, and we could be in no better hands."

Following the test for recusal, ask yourself, Freedman suggests, whether a reasonable man — you the public or a skeptic — might question whether Stearns would be impartial regarding Mueller and the FBI at the trial to come, and if Mueller is called as a witness.

“The matter [of Bulger and his history with the FBI] is an embarrassment to the FBI,” Freedman concluded.

When I asked him if “that creates the appearance problem” for Stearns with regard to Mueller, he said, “That's exactly right.”

Judge Stearns has a reputation for integrity and hard work. He's not being accused of wrongdoing or misconduct. Though Stearns declined to characterize the extent of his friendship with Mueller, he provided me a copy of the DVD of that 2006 ceremony.

In his sharp-toned refusal to recuse himself, Stearns wrote that because he was randomly selected to preside over this case, there shouldn't be any suspicion he's partial.

“Well, in fact, the truth is he was hand-picked,” said civil libertarian and defense attorney Harvey Silverglate.

There were two criminal cases against Bulger when he was arrested last summer — one before Chief Judge Mark Wolf, the other in front of Judge Stearns. According to Silverglate, “It was the U.S. Attorney's Office that decided to dismiss the case in front of Chief Judge Wolf and to proceed in the case before Judge Rick Stearns. He wasn't randomly selected. Judge Stearns was handpicked by the U.S. attorney to be the judge.”

The U.S. attorney may have had good reasons for doing that. (Prosecutors argued that the case before Stearns was stronger, involved murder allegations, and would bring justice more quickly to the families of the murder victims.) But Bulger's first attorney accused the U.S. Attorney’s Office of "judge shopping" to get the case away from Wolf.

Remember it was Wolf whose hearings in the 1990s turned over the rocks of the government’s secret relationship with Bulger. It was Wolf who concluded that far from being a case of "a few bad apples," the Bulger case involved dozens of officials "engaged in various forms of misconduct."

While Stearns declared in his opinion that because of random selection he is free from the suspicion that he is partial or that he was a "favored act," he took no notice of the fact that circumstances had given the U.S. attorney the chance to pick him, not Wolf. And those who have had good reason to doubt the Justice Department in the past are doubting it again, and suggesting that the government expected to be treated more favorably by Stearns.

Said Silverglate: "Judge Stearns is in danger of appearing to the public that he's part of a cover-up even if he isn't. And that's the problem."

With Carney, Bulger's attorney, openly saying the jury will be fairer to Bulger than Stearns, Stearns' profile and his impartiality are likely to gain more scrutiny.

A law clerk for Judge Stearns responded last week that under the rules of judicial conduct, Stearns is prohibited from discussing an active case.