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Bulger wants two cases merged

Lawyer accuses prosecutors of judge-shopping

By Milton J. Valencia and Shelley Murphy
Globe Staff / June 30, 2011

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A lawyer for James “Whitey’’ Bulger moved yesterday to consolidate the two racketeering indictments he faces, rather than allow prosecutors to drop the less serious one, a bid that prosecutors and families of Bulger’s alleged victims say will complicate prosecution of the 19 murder charges against him.

Peter Krupp, a provisional attorney for Bulger, 81, argued in court documents that prosecutors were “forum shopping’’ when, earlier this week, they moved to dismiss the racketeering indictment brought against Bulger in 1995. Prosecutors want to focus instead on an indictment brought in 2000, which includes the murder allegations.

Krupp argued yesterday for pursuing both sets of charges at the same time. That would keep the indictments before US District Chief Judge Mark L. Wolf, the original judge in the case. The 2000 case was assigned to a different judge.

The defense lawyer accused prosecutors of wanting to drop the 1995 charges as a way to keep the case out of Wolf’s court. He suggested prosecutors wanted to avoid Wolf because of the judge’s thorough examination more than a decade ago of the government’s scandalous dealings with Bulger.

“The government would be allowed to game the system,’’ Krupp said in the court documents. “Having encountered difficult questions from this court in lengthy hearings in the late 1990s, the government chose to have the newest allegations returned in a separate indictment, so that it might be assigned a different docket and drawn to a different judge.’’

Prosecutors responded by saying that Bulger’s call for consolidation of the cases was an attempt to delay his trial on the 19 slayings by bogging down the proceedings. They also said his lawyer lacks the authority to challenge the government’s decision to drop the 1995 case, in which the most serious charge is that Bulger extorted money from bookmakers.

Prosecutors have the support of families of Bulger’s alleged victims, including Thomas Donahue of Dorchester, whose father, Michael, was gunned down, allegedly by Bulger, in 1982. Noting Bulger’s age, Donahue said that the defense tactics could prevent Bulger from standing trial at all.

“As the government tries to push the issue, the defense is just dragging their feet,’’ Donahue said. “If this man dies, everything with him dies as well, and everything that happened to my father dies.’’

Wolf scheduled a hearing at 1 p.m. today to hear Krupp’s request for consolidating the cases. US Magistrate Judge Marianne B. Bowler is then slated to hold a hearing at 3 p.m. to determine whether Bulger is indigent and entitled to a court-appointed lawyer at taxpayer expense.

Krupp has argued that investigators seized more than $800,000 that they found in Bulger’s apartment after his arrest last week and that they have vowed to seize other assets they find, leaving him incapable of hiring his own lawyer.

But prosecutors say Bulger has the means to pay for an attorney, even if that means getting the financial support of his family, including former state Senate president William M. Bulger.

The ongoing legal wrangling that has occurred in the week following Bulger’s arrest June 22 in Santa Monica, Calif., after 16 years in hiding shows the complexities of the high-profile, high-stakes case, legal analysts say.

Prosecutors and family members of some of Bulger’s alleged victims say Krupp is doing his own “forum shopping’’ in an attempt to keep the case before Judge Wolf and trying to preserve the original charges. They say he is drawing out the legal process and delaying justice.

US Attorney Carmen M. Ortiz said in court documents that prosecutors wanted to dismiss the older case because it is weaker. Two key witnesses have died, she said, and prosecuting the case would divert resources from the more serious case.

Responding to Krupp’s motion late yesterday, prosecutors decried “the defendant’s lack of knowledge’’ of the history of the case, saying the 2000 racketeering indictment alleges “a new enterprise and a different pattern of racketeering.’’

“In fact, the only logical explanation for the defendant’s counterintuitive strategy of opposing dismissal and requesting that he be prosecuted for additional offenses is that the defendant is engaging in forum shopping,’’ prosecutors said.

Bulger, a longtime FBI informant, fled just before Christmas 1994 after his former FBI handler, John J. Connolly Jr., warned him that he was about to be indicted. Bulger and his longtime sidekick, Stephen “the Rifleman’’ Flemmi, were indicted in January 1995, along with Francis “Cadillac Frank’’ Salemme, then boss of the New England Mafia, and four other men on racketeering and extortion charges. Bulger, Flemmi, and Salemme were accused of running illegal rackets in Greater Boston and extorting money from bookmakers.

Bulger became the target of a worldwide manhunt. Flemmi tried to get the case dismissed by revealing that he and Bulger were longtime FBI informants who provided the bureau with information about local Mafia leaders, including Salemme.

He argued that their alliance was with the FBI, not with the Mafia.

But the defense backfired. Several of Bulger’s former associates began cooperating with investigators, leading them to secret graves of homicide victims and exposing Bulger’s relationship with the FBI during a series of hearings before Wolf.

The former associates’ assistance led to the 2000 indictment, which charged Bulger and Flemmi with 19 murders. Flemmi pleaded guilty to participating in 10 of those slayings and is serving a life sentence.

The son of William O’Brien, who was gunned down on Morrissey Boulevard in March 1973, said yesterday that prosecutors and the court should focus on the 2000 case.

Billy O’Brien never got to meet his father. He was born four days after the slaying, and he said the trial could help him understand the past.

“I’m just looking for this to get going, so I can put it all behind me,’’ O’Brien said. “I’ve been looking at this for so long. He needs to answer to the 19 murders that he has coming to him. They need to get on to the stuff that really does matter to me and the other victims involved in this case.’’



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