The murder and racketeering case against long-time Boston fugitive James "Whitey" Bulger is in need of a new judge. Citing institutional ties, a federal appeals panel has ordered Judge Richard Stearns off the case, saying his work as a federal prosecutor back when Bulger was an FBI informant could create questions about impartiality.
The move could force another delay in the trial schedule, now set to begin in June. And it's already created another legal question, as lawyers for Bulger say they hope they will be allowed to present evidence of an immunity deal to jurors — a move that Judge Stearns refused.
For more, Morning Edition spoke with Monroe Freedman, an expert on judicial ethics who teaches law at Hofstra University in New York.
Bob Oakes: How surprising is this ruling to you?
Monroe Freedman: Not at all. It was exactly the right decision. The only thing that surprised me was some of the strength of the language that Justice Souter used writing for the court. What he said in so many words is that it is clear and indisputable that Judge Stearns' decision cannot be defended as reasonable.
So, for the defense — and for the case itself — how significant is this decision?
For the defense, what it means is that they have gotten off the case a judge who, I think, could not possibly rule impartially. It's very important.
What comes next in terms of how difficult it will be to assign a new judge to this pretty complicated and already controversial case?
I don't think it'll be very difficult. This judge was picked at random. It does appear — there's a very good chance — that he'll be acquitted. What he says, that he was given immunity by the government, appears to be completely true. Now, the court didn't find that, but they alluded to how strong the evidence was in that direction.
Of course, there's a great legal question about whether jurors are going to be allowed to hear evidence of the supposed immunity deal. Bulger's defense attorneys say they're going to ask the new judge yet to be assigned to the case to reconsider the claims of immunity after Judge Stearns said earlier this month in a ruling that the defense could not ask the jurors to consider their claim that Bulger had immunity from the FBI to commit crimes. How likely is it that the new judge in the Bulger case could end up reconsidering lots of points, especially the immunity question?
He'll have to. Judge Stearns should not have made any rulings at all. That, in effect, is what the Court of Appeals decided. He was required by a congressional statute to get out of the case before he made any rulings whatsoever. It does not seem to me likely — certainly it shouldn't be — that those rulings will stand. And the new judge will have to consider them. I just don't understand how that evidence — that the government gave him immunity — how that evidence can be excluded. That is his defense. That is his right to his day in court, and it's essential to his defense. And the Court of Appeals, without saying it was all true, recognized there's very strong evidence.
What does this kind of ruling — ordering Judge Stearns off this case — do to the career of a federal judge?
It's very unlikely he's ever going to get a promotion. He won't be removed from the bench, but he has, in my judgement, disgraced himself and the judiciary in what he did. It was an absolutely absurd ruling.
- Expert: New Judge Will Have To Reconsider Bulger Immunity Claims
- PDF: Appeals Court Decision To Remove Stearns
- January 2013: Bulger’s Lawyers Ask Appeals Court To Remove Judge
- August 2012: Should Bulger Trial Judge Recuse Himself?
- Federal Judicial Disqualification Statute
- July 2012: Judge Refuses To Recuse Himself From Bulger Trial
- PDF: Stearns 2012 Decision On Bulger Recusal
This program aired on March 15, 2013.