U.S. District Court Judge Denise Casper was randomly selected Friday to preside over the trial indicting alleged former mob boss James “Whitey” Bulger after Judge Richard Stearns was ordered off the case by a federal appeals court in response to requests by Bulger’s lawyers that Stearns could not remain impartial during the trial.
Stearns was ordered off the case Thursday because he was a top-ranking prosecutor in the U.S. attorney’s office in the 1980s — the same time Bulger claims he had been granted FBI immunity for all of his crimes.
“With great respect for the trial judge, we nonetheless grant the petition, because it is clear that a reasonable person would question the capacity for impartiality of any judicial officer with the judge’s particular background in the federal prosecutorial apparatus in Boston during the period covered by the accusations,” said former Supreme Court Justice David Souter in the ruling.
Bulger claims Jeremiah O’Sullivan, another federal prosecutor, verbally promised him that he would not be prosecuted for any of his crimes committed, including murder. Bulger is charged with federal racketeering and 19 murders he allegedly committed during the 1970s and 1980s.
O’Sullivan was head of the New England Organized Crime Strike Force at the same time Stearns was chief of the U.S. Attorney’s criminal division, and O’Sullivan shared information with people in Stearns’s office.
“The Strike Force, to be sure, was distinct from the Office of the United States Attorney where Judge Stearns was a supervisor, and was a competitor organization within the Justice Department, reporting directly to the Attorney General,” Souter said in the ruling. “But there is reason to believe that there was no impermeable barrier insulating information known to one office from being shared with the other.”
Souter said there is no reason to believe that Stearns would not be impartial, but that his removal is still warranted.
“In sum, despite our respect for Judge Stearns and our belief in his sincerity, we are nonetheless bound to conclude that it is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim,” Souter said.
Bulger’s lawyers said in a statement Thursday they will ask Casper to reconsider Bulger’s immunity claim.
“It has always been our intention to have James Bulger testify at trial and explain to the jurors how he operated for over twenty-five years in Boston without a single charge by Federal prosecutors,’’ said J.W. Carney Jr., Bulger’s attorney.
Richard Lehr, professor of journalism at Boston University and author of a number of books on Bulger, said Bulger’s immunity claim is unheard of.
“Many expert lawyers have been saying they’ve never heard of anyone getting the kind of license to kill that Whitey’s lawyers were claiming he had,” he said.
Lehr said Stearns’s ruling still allows Bulger to claim immunity and his lawyers could submit legal documentation even if Casper decides to not allow the immunity claim during the trial.
“The judge left the door open that Whitey can still claim that when he became an informant the government agreed not to prosecute him for any past crimes he committed, versus future crimes, and the judge invited Whitey’s lawyers to submit legal filings detailing their claim of immunity,” Lehr said.
Bulger’s trial was scheduled for June 6, but could be pushed back further with the Casper’s appointment.
Casper is the first African-American woman to become a federal judge in Massachusetts. She served in the U.S. attorney’s office from 1999 to 2005 and was appointed to the bench in December 2010 by U.S. President Barack Obama.
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