The Court of Appeals in an opinion written by Justice David Souter has removed Judge Richard Stearns from Whitey Bulger’s case.
The decision told of the history behind the indictment calling Whitey “a leader of a criminal organization in Boston from 1972 to 1999.” It notes his association with Steve Flemmi who pleaded guilty and that Whitey was a fugitive until 2011.
It goes on to point out that during the 1970s and 1980s the FBI, Strike Force and US Attorney’s office would have known about him because he was a notorious criminal. It noted Whitey’s has suggested that even though they knew of him they did not take action against him because he was an FBI informant. Whitey also suggests this failure is evidence that the Justice Department gave him immunity.
The court noted Judge Stearns had managerial and supervisory positions in the US Attorney’s office during a significant part of this time. Whitey argued given this “a reasonable person would conclude that the judge could not be impartial, particularly in treating the immunity defense . . . . ” Whitey also argued that Judge Stearns would have had a personal relationship with numerous witnesses including FBI Director Mueller who Whitey planned to call as a witness. Whitey also suggested Stearns himself could have become a witness himself.
The decision went on to point out that Judge Stearns refused to step down because “he had no doubt he could remain impartial and no reasonable person could doubt it.” Stearns further said he had no personal knowledge of anything material to the charged conduct. Stearns also was not persuaded Whitey would call him as a witness since he knew nothing of the case.
The court of appeals pretty much had to decide whether a reasonable person would question Judge Stearn’s impartiality; or if not, whether it was likely Whitey would call him as a witness; and also whether Judge Stearns sitting on the case would cause “irreparable harm.”
The decision emphasized that the question before it was even though Judge Stearns has shown no bias in handling the case, and Whitey has not claimed that he has been biased, whether Judge Stearns decision to stay on the case came “from a good-faith failure to recognize how a reasonable member of the public would perceive [his] relation to the case.”
The court did not question Judge Stearn’s ability to remain impartial or his sincerity in concluding he he is not biased. I would note neither have I. It is, as I have said, and the court concluded what it had to decide was whether facts were so that “a reasonable question in the mind of a well-informed person about the judge’s capacity for impartiality in the course of the trial and its preliminaries” might exist.
Judge Souter noted that such a request by a defendant must be scrutinized carefully to avoid spurious claims of impartiality. Here, he said, there are reports predating the hearing that “disclosed disquieting links between the Government and the criminal elements during the years in question, and that may fairly stimulate a critical attitude on the part of an independent observer.”
Citing other opinions, the court said “some facts may be treated as undisputed” such as Whitey and Stevie controlled the Winter Hill Gang and agreed to act of FBI informants against the Boston Mafia, a Justice Department priority during the applicable times under consideration.
The court goes on to write: “It is widely known that the FBI’s principal contact person (“handler”) with [Whitey and Stevie] was later convicted of taking bribes from them.” This misstatement grabbed my attention. Connolly was never convicted of taking bribes. Souter added prior evidence showed “that the FBI provided the Winter Hill Gang with names of rival snitches, who were subsequently murdered” without noting Connolly was acquitted of doing this.
These are pretty serious commissions and omissions that one would not expect in a Court of Appeals decision. They show, which I have been writing about, how much untruth surrounds the matters of Whitey Bulger. It even permeates the decisions of the Court of Appeals.
Judge Souter went on to write about Jeremiah O’Sullivan who knew about the FBI relationship with Whitey and Stevie. He noted that his testimony before the congressional inquiry was found to be false. He showed there was some communication between O’Sullivan and Stearns’s office. Because the Government and the defendant were “not at arms length during all of the period in question” the terms of their relationship could reflect on the US Attorney’s office. Since Whitey’s claims may necessitate an enquiry into his dealings with that office the court noted “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.”
The court concluded that it did not consider whether the defendant would suffer irreparable harm but whether Judge Stearns sitting on the case would “damage the judicial system.” Here, the court went on, “the prior disclosures make it imperative to act promptly to preclude any reasonable question whether untoward Government action in the past may affect the fairness of the judicial branch in the present.” Finding that it did, it ordered Judge Stearns to step down.
I always suggested it would be best for Judge Stearns to recuse himself even though I believed he would be as fair and impartial as any other judge. I thought down the road they’d always be a minority who’d question his impartiality. Why let that happen in a case as significant as this. Yet even though I agree the court made the right decision I’m bothered it. Perhaps it is because of those mistakes I mentioned. Perhaps it is something else I can’t quite put my finger on at this moment.