Bulger attorney offers a conundrum: says Bulger was never an informant, yet received immunity

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Defense attorney J.W. Carney Jr. says James “Whitey” Bulger was not an informant. (Milton J. Valencia/Globe Staff)

Notorious gangster James “Whitey” Bulger’s lawyer said today his client was never an informant for anyone, but then sidestepped questions about why Bulger would have immunity for his crimes if he hadn’t provided law enforcement with information.

FILE - This June 23, 2011 file booking photo provided by the U.S. Marshals Service shows James "Whitey" Bulger. A federal judge in Boston will hear arguments Wednesday, Feb. 13, 2013, on Bulger's claim that he was given immunity to commit crimes while he was an FBI informant. Bulger's lawyers want to use his immunity claim as a defense at his upcoming trial. (AP Photo/U.S. Marshals Service, File)
James “Whitey” Bulger)AP/File

“James Bulger was never an informant for the FBI or anybody else,” said J.W. Carney Jr. after a hearing at the federal courthouse.

Asked why Bulger would have gotten an immunity deal as he claims, Carney said, “We’re going to present the answer when the trial starts on June 10.”

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Bulger’s claim that he was not an FBI informant is contradicted by FBI files that indicate he served as an informant from 1975 to 1990, the Globe reported last week.

Carney commented after a hearing today in which the prosecution and defense clashed over whether a judge, rather than a jury, should decide Bulger's explosive claim that he was given immunity to commit his alleged crimes, which include 19 murders.

US District Judge Richard G. Stearns said he would take the issue under advisement and gave both sides 14 days to submit further filings.

Prosecutor Zachary Hafer argued that Stearns should rule on the question. “Immunity is an issue capable of determination without a trial of the general issue,” said Hafer, who said as an aside that the idea of such an agreement was ridiculous.

“Mr. Bulger has not pointed to one case in the history of America’s jurisprudence ... in which a jury decides the issue of immunity,” he said.

Carney took the opposite position.

“The defendant still has the right to present the evidence to the jury,” he said. “To remove his right to testify ... will, in effect, deny him of his right to a fair trial.”

He said that three components would have to be proved: whether someone had authority to grant immunity, whether they did so, and whether the agreement included immunity for murder.

“James Bulger will testify that he was given immunity from prosecution by Jeremiah O’Sullivan,” said Carney, referring to a federal prosecutor, who has since died, who led the now-defunct New England Organized Crime Strike Force.

Carney said in August that Bulger would testify in his own defense. And it’s been clear since October from court filings that Bulger would name O’Sullivan as the federal prosecutor who supposedly gave him the immunity. O’Sullivan died in 2009 at age 66.

The surprise came last week — when Bulger’s puzzling claim that he wasn’t an informant first came to light in the Globe report. The report said that in a jailhouse telephone conversation with his brother, John, Bulger had insisted he was never an informant and had paid agents for information.

Bulger, once a fearsome figure in Boston’s underworld, fled the state in the 1990s and was sought by the FBI in a worldwide manhunt. He was arrested in June 2011 in Santa Monica, Calif., after 16 years on the run. He is accused in a federal racketeering indictment of participating in 19 murders.

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