Whitey Bulger says jury should weigh his immunity defense

By Shelley Murphy, Globe Staff

Lawyers for James “Whitey” Bulger argued Monday that the gangster has a right to ask a jury to decide whether there is any merit to his claim that the US Justice Department promised him decades ago that he would never be prosecuted for any of his crimes, including murder.

In a memorandum filed in US District Court late Monday, Bulger’s lawyers revealed for the first time that Bulger, 83, a longtime FBI informant who insists he had immunity, also claims the government told him his agreement “did not have an expiration date.”

Boston attorneys J.W. Carney Jr. and Henry B. Brennan disputed the prosecution’s contention that Bulger’s immunity defense is a legal matter for the judge to decide before he goes to trial in June. Bulger is facing sweeping federal racketeering charges that include that he participated in 19 murders in the 1970s and 1980s.

“The Department of Justice’s grant of immunity to James Bulger does not raise the type of constitutional issue that allows intervention by the judiciary,’’ Bulger’s lawyers wrote in the memorandum. They said the judge’s role is to determine at the end of trial whether the defense provided sufficient evidence of immunity to warrant a special instruction to the jury before deliberations.

Federal prosecutors have argued that Bulger’s claim of immunity is “frivolous and absurd” and urged US District Judge Richard G. Stearns not to allow him to present that as a defense.

Bulger’s lawyers claim that former federal prosecutor Jeremiah T. O’Sullivan, who died in 2009, granted Bulger immunity from prosecution some time prior to December 1984 because he was a prized FBI informant providing information against local Mafia leaders.

O’Sullivan, who prosecuted the leadership of the New England mob while serving as head of the New England Organized Crime Strike Force, testified during congressional hearings in 2002 that he never promised immunity to Bulger or his longtime sidekick, Stephen “The Rifleman” Flemmi.

Flemmi, who was indicted with Bulger in 1995, launched a similar defense, claiming he and Bulger had been promised immunity from prosecution by the FBI, with the caveat that they not kill anyone.

After exhaustive hearings, US District Chief Judge Mark L. Wolf ruled in 1999 that the FBI had granted Bulger and Flemmi tacit approval to commit some crimes, including gambling and loansharking, but rejected the claim that there was a formal immunity agreement.

Bulger fled shortly before his January 1995 indictment after being warned by his former FBI handler, John J. Connolly Jr., that his arrest was imminent. After more than 16 years on the run, Bulger, who was one of the FBI’s Ten Most Wanted, was captured in Santa Monica, Calif., in June 2011.

A federal appeals court is weighing Bulger’s request to remove Stearns from the case because the judge is a former federal prosecutor and served as chief of the US Attorney’s criminal division during the 1980s.

In denying two requests by Bulger to step down from the case, Stearns said he was unaware of any immunity deal by Bulger and was not involved in any investigations involving the gangster while working as a federal prosecutor.