In key victory for James ‘Whitey’ Bulger, federal appeals court throws US District Court Judge Richard Stearns off case

By Shelley Murphy and John R. Ellement, Globe Staff

In major win for Bulger defense, judge removed. (Boston Globe)

In a major victory for notorious gangster James “Whitey’’ Bulger, the First Circuit Court of Appeals in Boston today ordered US District Court Judge Richard Stearns off the case.

James “Whitey” Bulger (US Marshals Service/AP)

The ruling, issued this morning, was written by former Supreme Court Justice David Souter, who often sits on appeals court cases at the Boston courthouse.

“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,’’ Souter wrote.

Stearns was a top-ranking prosecutor in the US attorney’s office in the 1980s, during the same period of time that Bulger claims another federal prosecutor, Jeremiah T. O’Sullivan, granted him immunity for all of his crimes, including murder.

Bulger’s lawyer, J.W. Carney Jr., told the appeals court that there was no written immunity agreement, but that O’Sullivan, who died in 2009, had verbally promised Bulger he would not be prosecuted for any crimes.

O’Sullivan was head of the New England Organized Crime Strike Force, while Stearns was chief of the US Attorney’s criminal division.

Though the Strike Force acted independently at the time and O’Sullivan was not under the direct supervision of the US attorney in Massachusetts, he did regularly share information with his counterparts in that office. And after stepping down as head of the strike force, O’Sullivan served a stint as acting US attorney.

Carney has also argued that Stearns had a conflict because he remains close personal friends of FBI Director Robert Mueller, who also was a prosecutor in the US attorney's office in Boston during the time Bulger said he had immunity.

Bulger has recently denied he was an FBI informant, but the government said he was an informant from 1975 to 1990 and his voluminous informant file has been revealed in prior court proceedings.

In a statement issued after the ruling was made public, Carney said Bulger remained determined to testify at his trial and to prove he acted with federal immunity for 25 years.

“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,’’ Carney said in the statement.

Carney added that “this will include direct and corroborating evidence that he received immunity, and that it was not because he was an informant. We intend to call all relevant witnesses, even if they are judges, a director of the F.B.I., and former United States Attorneys.’’

In his ruling, Souter concluded that the institutional history was a significant issue.

“Given the institutional ties described here, the reasonable person might well question whether a judge who bore supervisory responsibility for prosecutorial activities during some of the time at issue could suppress his inevitable feelings and remain impartial when asked to determine how far to delve into the relationship between defendant and Government, and to preside over whatever enquiry may ultimately be conducted,’’ Souter wrote.

He added, “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. But there is reason to believe that there was no impermeable barrier insulating information known to one office from being shared with the other. ‘’

While writing that there was no reason for them to question Stearns’s ethics, Souter, writing for a three-judge panel, concluded that he should be taken off the case.

“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 wrote.

“The other mandamus conditions being satisfied, the petition is granted, and the case shall be reassigned to a judge whose curriculum vitae does not implicate the same level of institutional responsibility described here.’’

The brother of one of Bulger’s alleged victims said he believed there was “good reason’’ for Stearns to be removed from the case, but now fears the trial may be postponed by the judge who is assigned to take it over.

“Is he going to say he needs six months or a year to read 500,000 documents in the case?” asked Steve Davis, whose 26-year-old sister Debra was allegedly strangled by Bulger in 1981. “Nothing in this whole case has been right. It’s all been in Whitey’s favor, not ours... It’s going to cause a delay in the trial either way you look at it.”

Bulger was scheduled to face trial in June on charges that include participating in 19 murders. Stearns was going to preside at the trial, now slated for June 6. Carney has said he would not seek a delay in the trial if Stearns were replaced with another judge.

Stearns recently denied Bulger’s request to present his immunity claim to the jury. Stearns ruled that he would decide the issue for himself.