The saga of James “Whitey” Bulger continued Wednesday at a pre-trial hearing where the prosecution and the defense debated whether Bulger’s alleged immunity would be allowed as a defense in court.
U.S. District Judge Richard Stearns did not hand out an immunity ruling Wednesday and said he would take the issue under advisement, giving the defense and prosecution 14 days to submit further filings.
“The judge asked for more written submissions from both sides, so there was no ruling of any sort,” said Christina Sterling, public information officer for the U.S. Department of Justice District of Massachusetts.
This hearing is the result of Bulger’s claim that a federal prosecutor granted him immunity for his crimes while he was providing the Federal Bureau of Investigation information on rival crime organizations.
Bulger was the leader of the notorious Winter Hill Gang. He is charged with federal racketeering and 19 murders he allegedly committed during the 1970s and 1980s. After a prolonged manhunt, Bulger was arrested in June 2011 in California.
Prosecutors claim that immunity from the FBI has no basis in legality, as it would not allow for murder.
J. W. Carney Jr., Bulger’s attorney, declined to comment about the hearing.
Richard Lehr, professor of journalism at Boston University and author of multiple books on Bulger, said there is a lot of debate surrounding the claim of immunity for Bulger because it was not based on anything legal.
“Any lawyer I have talked to said that he doesn’t have a legal prayer,” Lehr said. “Legally, there is no such thing as a license to kill. I can see why he thinks he has a license to kill because of his experience on the street all those years where he indeed was able to kill without consequence because he had a band of corrupt FBI agents protecting him. It’s not as crazy as it seems.”
Lehr said Bulger may not have had legal immunity, but he was safe from prosecution on the street.
“On the streets he probably had what he calls immunity,” Lehr said. “But it’s based on the criminal actions of corrupt FBI agents, and I don’t think that’s going to stand up in court.”
Although he does not support Bulger’s claim for immunity, Lehr said he does support the process of gaining more information for the public.
“My hope is that they actually get to argue this to a jury because, as a journalist and as a citizen, I want the defense to put the government on trial,” he said. “I hope we will have a greater understanding of how this happened than we do today, because I don’t think we’ve ever gotten to the bottom — inside the government and the FBI.”
Stan Fisher, a BU School of Law professor, said a pre-trial hearing for an advanced ruling is quite common.
“It’s a lot more efficient,” Fisher said. “Testimony can take hours, validating witnesses, and then it turns out that it has not strictly been admitted. The judge tells the jury to disregard it, which can be very difficult for people, psychologically, to disregard what they have heard.”
Because of the high-profile nature of the case, many people already know about Bulger’s claim to immunity even if, as a defense, it is not allowed in court, but that is something that lawyers take into account when selecting a jury, Fisher said.
“There is no jury selection until the trial is about to begin and in the process of jury selection, my guess is, they will have to fill out a questionnaire,” Fisher said. “There may be questions about exposure to pre-trial publicity, and even if there were not a questionnaire, part of the jury selection process would be questioning the jurors about things which could bias the jury.”