A lawyer for reputed Boston gangster James "Whitey" Bulger argued Wednesday that jurors should be allowed to hear statements that government prosecutors made about a star witness against Bulger, including that he's "a sick individual" and not credible.
Attorney J.W. Carney Jr. said the statements made during past litigation about former Bulger cohort Stephen "The Rifleman" Flemmi are crucial to helping the jury decide Flemmi's reliability.
"It can only be fair that the jury hear how the government characterized their witness and their evidence," Carney told U.S. District Judge Denise Casper during a hearing at federal court in Boston.
But prosecutor Fred Wyshak said that the statements are either inadmissible or irrelevant and that Carney just wants to use them as a shock tactic.
The judge did not immediately rule on the request.
Bulger is a former leader of the Winter Hill Gang and alleged FBI informant against the New England Mafia, the gang's main rival. He has pleaded not guilty to participating in 19 murders and his attorneys deny he was an informant.
Jury selection is underway in Bulger's trial, and opening statements are scheduled for June 12.
In a motion Wednesday, Carney noted past statements the government made about Flemmi and said the statements, made on the record, cannot be shielded from a jury.
His motion mentions a government brief in a mid-1990s case against Mafia soldier "Cadillac" Frank Salemme, a former Winter Hill Gang ally. In the brief, prosecutors say Flemmi's "credibility is highly suspect" and his testimony in the Salemme case was "saturated with inconsistencies and fabrications."
The motion also notes that in another case — a 2009 civil suit in the estate of alleged Bulger murder victim Debra Davis, a former girlfriend of Flemmi — a federal prosecutor said at trial: "Mr. Flemmi is such a sick individual, it would seem difficult to render a judgment based on anything that he says."
Carney asked the judge Wednesday: "How powerful could that be for the jury to hear?"
But Wyshak said the statement was taken out of context and should not be admitted in the Bulger trial.
"It's an opinion," he said. "It's not an assertion of fact."
The prosecutor said the statements about Flemmi during the Salemme case were made before Flemmi became a government witness and changed his story. He said Bulger's defense wants to try to highlight an inconsistency by the government that doesn't exist. Wyshak said prosecutors called Flemmi a liar at a time "when in fact he was a liar."
"The government today still says that testimony is untrue," he said. "Mr. Flemmi will now say that testimony is untrue."
In a separate matter, Casper said she would consider a motion that seeks to bar journalists from the courtroom who've written extensively about Bulger, including Boston Globe reporters Shelley Murphy and Kevin Cullen and Boston Herald columnist Howie Carr.
All three have written books about Bulger and are on the list of potential defense witnesses. Carney said they may be called if witnesses make statements on the stand that contradict what they told reporters. He argued that they should be sequestered like other witnesses to preserve the integrity of the trial. Sequestering the three journalists would prevent them from reporting on, watching or even discussing the trial.
But U.S. Attorney Brian Kelly said it wasn't clear if any of the three would be called to testify. He said Bulger was just trying to shut out certain reporters he dislikes.
"He hates certain members of the press, including Cullen, Murphy and Howie Carr. Especially Howie Carr," Kelly said.
This program aired on June 5, 2013. The audio for this program is not available.