Court Removes Judge Stearns Based On Public Perception

Boston’s Federal Court At Night

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.

 

20 thoughts on “Court Removes Judge Stearns Based On Public Perception

  1. In the Q & A at the bottom of this article, a law professor says Stearns “disgraced himself and the judiciary”. He further opines that Whitey will be acquitted. That’s the first time I’ve seen that in print.

    BTW has anyone else wondered how long the mainstream media in Boston will continue to pretend Matt’s blog doesn’t exist?

    http://www.wbur.org/2013/03/15/bulger-trial-stearns-removed

    1. Patty:
      Thanks for noting the article. As for the media ignoring my blog I really don’t see why they would want to pay attention to the view of a heretic.

  2. Matt: Ishneal told me to write this: Here’s the beginning of that letter I mentioned. I found it archived on the Herald’s website (they only print the first few sentence of archived material). I probably have it somewhere on my old computer. Yes, it was October 2008. I was down in Miami in November-December 2008, at the post-trial hearing. (That weekend I went to Tampa to watch BC v. Virginia Tech in the ACC Championship game.) Here’s the letters opening lines as printed by the Herald:
    “Dear Editor: What imprudence or cold calculation prompted the federal appeals court to issue its decision, which condemned the FBI, in the middle of FBI agent John Connolly’s murder trial in Miami (“Court OKs $3.1M judgment,” Oct. 17). Decency and fairness warranted a month’s delay. Connolly was defenseless. Both plaintiffs’ counsel and federal defense counsel used Connolly as a scapegoat for all the FBI’s misdeeds. Not since the Dreyfus Affair has an entire judicial system abetted such an injustice against one man.”
    I mentioned previously that John Connolly was not represented by counsel in that civil action! He was bankrupt and sitting in a jail cell,when the jury-waived civil trial in Boston commenced and the appeals were heard and decided. The Miami jury, not sequestered, likely read or heard about those front page headlines which were national news! Stuff like that makes us wonder about the Court’s actions. Thoughtless, innocent mistakes or deliberate, coldly calculated actions? There may be systemic problems in the DOJ, FBI and federal judiciary in Boston. Stearns’ decisions, his reluctance to recuse himself, his lack of insight into his own potential biases, and his eventual ouster, coupled with the errors of Wolfe and the harsh sentence by Tauro, the disparate treatment of Tierney’s wife, the slap on the wrist to Morris Goldings, etc, etc, etc, all add to the sense that there’s deep-seated institutional pathology in the Moakley Courthouse, as Patty, Neal C, Jim P, Pam, yourself and others have perceptively observed.

    1. Bill:
      I agree. The Court of Appeals should not have issued its decision in the middle of the Connolly trial in Florida. However a handful of cases that you point to do seem to suggest in matters surrounding Whitey there is a leaning against him. I still believe though that the judges there do their best to decide cases fairly and in conformity with the law. They handle many cases every day and during that process some error can be spotted here and there. I have a passing acquaintance with Harrington, Young, Stearns, and Tauro and find they all all upright and honest who call things as they see it. There may be a problem of being too close to the prosecution or too deferential to the FBI from an outside perspective but not being in the courthouse everyday and not seeing how each judge works in each case it is difficult to prove that. I’m reluctant to believe anything other than the judges do their best under sometimes very trying circumstances and that it is easy for us to throw stones when we should perhaps stay our arms.

  3. Bagdad Bob has more credibility than the Judges at the Moakley Courthouse. Your posts the last couple of days have been excellent. Not only did Souter and the Court of Appeals traffic in obvious falsehoods but so did Wolfe. Naimovich guilty? Connolly guilty of taking bribes? FBI leaks led to murders? All judicial findings in these areas are blatantly false. Is this part of an attempt to protect and cover up all judicial and prosecutorial misdeeds of the past twenty years? ( Don’t embarrass the family) Keep mouthing the party line and hope no one will notice. The Courts next finding will be that the Domino Theory was real and the Hitler Diaries are true. 2. Carney’s first witness in his immunity hearing should be Stearns. Ask him what the procedure was for using informants. Have him acknowledge that informant relationships with the FBI are ongoing and don’t expire at midnight. They don’t have to be renewed daily and are inherently prospective. Force Stearn to contradict his finding that immunity deals can only be retrospective. Secondly he should call Wolfe who worked for the DOJ back in the 80s. Ask him what the procedures were regarding informants. Ask him about his 600 page report. Ask if Naimovich was guilty or not guilty. Ask him if Halloran was killed because of a leak. Call the authors of the RICO book. Call Carr and Flemmi. Ask Flemmi what his understanding of his immunity deal was. In 1997 Flemmi testified that he was a TE informant. What was the deal? Have WB testify about the O’Sullivan deal. Inherent in the TE informant program is the assumption that violence is tolerated as long as you go after a bigger fish ( see Gravano in NY helping get Gotti et al). Call D. Stern to ask him what his deal with Salemme entailed. Did he know Salemmi was the head of the New England Mafia? Who was a bigger fish than Salemmi and why did you strike a deal with him? Stern traded down. 3. In 1851 Melville discussed the difference between a Fast Fish, one owned or possessed, and a Loose Fish, one not possessed. He described America in the 16th century as a Loose Fish thus being unoccupied and subject to seizure by European powers. Whereas in the 18th century John Bull had harpooned poor Ireland and rendered her a Fast Fish and depriving her of her Rights. In the 20th century the Globe has harpooned poor Southie, run a four decade long vilification campaign against her and deprived that community of it’s Rights. Is the Moakely Courthouse a Fast Fish of the Mafia? It acts that way.

    1. What N. Connolly told me is that a “fast fish” is a fastened fish. Melville was referrring to whales harpooned and fastened to the side of a ship, as opposed to loose whales which were merely harpooned and not hauled back in and tied up to the side of a ship. Melville said North America was loose; anyone could come here and claim a part of it; but historically in the nineteenth century and before, he said poor Ireland had been harpooned and fastened by Imperial Britain. He could have said harpooned, fastened and gutted. Thomas Sowell has a great quote by a world traveler (was it DeTocqville?), who deplored the plight of the Native American on reservations (the Red Man) and the American slaves in chains (the Black man) but he said he’d never seen such misery, poverty,and suffering until he visited the poor Celts in Ireland, the starving Irish in their shanties and hovels, living under cruel British rule. The exact quote is in Sowell’s Ethnic America.

      1. Bill:
        No wonder there are such problems here in the courts. I believe they follow the Common Law which comes from England the country that went to war in South Africa because a dozen or so Brits were deprived of the right to vote while depriving six million Irish people and over 100 million people from India of the same right. John Bull is appropriately named for he certainly throws a lot of it around.

    2. Neal

      1. I think what is happening the local courts is that they, like you, read too much fiction. They’re read Black Mass and Howie Carr and other media authors and think they are telling what happened when they are making things up out of whole cloth as I’ve clearly shown. They gather in these false beliefs and then write their opinions in, to paraphrase the Court of Appeals, in “a good-faith failure to recognize how” infected they have become by the false accusations and assertions. David Souter is an excellent judge. I don’t believe he got caught up in this mish mash of misinformation.
      2. Carney’s first witness shud be Howie Carr. That’ll be enough to put the jury into a mood of perpetual nullification. AFter that he can call the witnesses you suggest but it will all be anti-climatic after Howie’s act.
      3. “Call me Ishneal” is the name Moby Dick should have opened with. I told you what would happen to you if you read too much of Melville.Fast fish or loose fish it’s all the same to me.

  4. “The court of appeals in a footnote numbered 3 said that Judge Stearns order on immunity does not have to be vacated noting “nothing we decide here necessarily requires reploughing the ground, given the absence of any allegation that Judge Stearns is actually biased.” I think that runs contrary to the whole decision.” Exactly! In fact, the sentence that is footnoted says the opposite: ” . . .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.” Now Carney is going to challenge Stearns’s ruling on immunity before the new judge. I can’t imagine that the trial will begin in June if that has to be decided again.

    1. Pam:
      When I wrote about the decision I noted it was right but something was bothering me that I couldn’t put my finger on. In a discussion with a former associate yesterday I figured it out and it was exactly what you write about. The attempt by the Appeals Court to justify Judge Stearns’s March 4 decision runs contrary to everything it said in its opinion. I may post a blog on that unless I think you have already stolen my thunder.
      That’s the predicament that was created by Judge Stearns rushing that decision. He should have let the next judge decide it. If Carney brings it up again and the next judge follows Judge Stearns’s order a distaste will remain that the judge who the court of appeals said is perceived by the public not to be impartial has decided the most crucial motion which the public can only perceive was decided for impartial reasons.
      I think they’ll hold to the June schedule. All of the judges want this case to go away. It’ll be interesting to see who get the case. Probably Judge Young.

  5. This is a huge case development; thank you for the excellent summary, Matt! I have not read the full opinion but as I read the summary and consider past discussions, I wonder how, in the absence of a formal, express “immunity agreement” it seems that the premise, based on the summary, is that there was an implied immunity agreement. You relay how, “[The opinion] noted Whitey 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.”

    What strikes me is that this draws attention to prosecutorial discretion which affords huge latitude to prosecutors. I recall John Ashcroft issuing an instruction to DOJ attorneys to pursue cases which will guarantee the greatest penalties under the the U.S. Sentencing Guidelines, which were still mandatory at the time as it predated the 2005 U.S. v. Booker SCOTUS decision. This is one example of how many crimes may go unprosecuted, simply due to administrative priorities. What Whitey is claiming to be a basis to suggest immunity appears more to be the exercise of prosecutorial immunity. As a former prosecutor, perhaps you have insight into the difference, or what differences could be argued by the prosecution in Whitey’s case? -Jay

    1. Jay:
      I don’t believe any immunity agreement ever existed. I ran the organized crime section of the DA’s office in Norfolk County and we often targeted Whitey’s gaming operations without having any knowledge they were paying rent to Whitey. We were intent on making runs at Whitey if we had the opportunity. We never did have enough information to do charge him with anything. Suppose later in time we did come up with that information. Whitey could allege he had a deal with a young assistant DA, say a person like Tim Spillane who ran the Quincy District Court and died at age 51 while on the job, that Norfolk would not prosecute him. He could say that what proves the deal is that we never did prosecute him over that period of time. We’d then have to try to show we didn’t have enough evidence to prosecute him but to prove that negative would be impossible.
      You correctly point out there are many reasons why Whitey would not have been prosecuted even if the US Attorney had information that would have allowed it to bring a case against him. One is the right of the prosecutor to pick and choose what cases she will bring. One great problem with the Whitey case is that people are making judgments about what was known about Whitey back in the early or mid-Eighties based on what we know about him today. I didn’t know he was the guy that got the “rent” from all the bookies I was hitting at the time. The US attorneys did not know back then he was murdering people as they now tell us he had done. I’m sure they knew he was a gangster and O’Sullivan knew he was an informant but as you note they prosecutors were looking at the Mafia back them so that is where they would have placed their priorities.
      Wyshak and Kelly will argue there was no immunity deal (I think that question is off the table anyway by Stearns’s decision). Next they will argue if one existed the prosecutors never heard of it. Then I assume they’d argue they had no evidence against him to bring charges, and, if they did, they would argue that they decided not to do this because of certain other considerations such as him being an informant and the Mafia their main target.
      The court of appeals in a footnote numbered 3 said that Judge Stearns order on immunity does not have to be vacated noting “nothing we decide here necessarily requires reploughing the ground, given the absence of any allegation that Judge Stearns is actually biased.” I think that runs contrary to the whole decision.

  6. Good posts! I have before and do continue to question the integrity of the U.S. Court of Appeals in Boston. Long ago I wrote critically of that court. Around December 2008, January 2009, I condemned them publicly for releasing a decision in the civil case against the FBI that made front page headlines in most newspapers in the country. The Clerk published the case while Connolly’s jury in Miami was debating his fate. The Headlines contained words to this effect: “FBI liable; Connolly liable.” Jurors and jurors’ families likely saw those headlines. The story under the headlines specifically said, as the Court in the civil action then found, that people were killed because of Connolly’s leaks. It was a civil case; not the criminal case. Connnolly was not represented by counsel in the civl case. As I said before, both the defendants and plaintiffs painted him as a culprit, “a rogue cop.” The timing of the release of that decision was highly suspect. The Herald printed my letter questioning the cold calculation that led to its release.
    I also sided with David Boeri’s national expert on recusal who said Stearns’ refusal to recuse himself was a glaring error: the expert had never seen such a clear case of judicial conflict. Stearns lacked discernment. He believed no reasonable person could question his impartiality. Many reasonable people have; experts have.
    The errors regarding Connolly are inexcusable and unforgivable. Not only was Connolly never convicted of taking “bribes”, he was never charged with taking any bribe, ever. He was convicted of “transmitting” a $1,000 bribe from Bulger to Morris. One time! He was acquitted of transmitting two other bribes and acquitted of taking a bribe in the form of a ring. Not quilty on all those latter counts! The Appeals Court not only distorts the lower court’s record, it makes up facts out of whole cloth. Unforgivable! And as Matt pointed out, Connolly was acquitted in Boston of leaking any information that led to anyone’s death! Not guilty, the federal jury in Boston clearly said. These glaring errors indicate how judges rewrite history; they ignore the facts; they read the yellow journalists in the Globe and Herald and think low-lifes like Howie Carr convey the truth and facts. They confuse and conflate civil actions and criminal actions. Are they stupid, lazy or dishonest? No one at the Appeals Court can correctly read a criminal record? So, yes I do condemn the Appeals Court’s glaring errors and sloppiness! The Appeals Court was as indifferent to the facts and law, as was Judge Wolfe when he found Mr. Naimovich guilty of a crime he was acquitted of. These are not clerical errors. The Courts are perpetuating invidious, blatant falsehoods, which leave lifelong scars on persons’ names and reputations. It’s as if an Appeals Court wrote that the Duke LaCrosse players were guilty of rape and Raymond Donovan guilty of taking bribes. And I also do condemn Stearns for lacking the discernment and prudence to recuse himself in the first place.
    So, open your eyes everyone: The rot reaches and infests even the highest branches of government. I don’t want to recount the St. Pat’s Parade case and I do applaud Souter for writing the factual and constitutional unanimous 9-0 opinion in that case. Souter should investigate what judge slipped in those defamatory lines, those glaring faleshoods about Connolly. All three jurists should hang their heads in shame on this one. What took them so long to reach and issue a decision, anyway? Incidentlally, when the US Supreme Court issued its unanimous decision in the Parade Case in 1995, the federal Appeals Court in Boston was still trying to decide whether the Veterans had free speech rights or whether the Veterans should be held in contempt of court for holding a parade in defiance of the State Court’s flagrantly erroneous unconstitutional decisions. I could go on . . . .

    1. I meant to say: Connolly was never even charged with taking any money. Based solely on the uncorroborated testimony of Martorano, Connolly was charged with taking a ring from Bulger. The Boston jury, of course, acquitted him of that charge. Martorano’s story was he heard someone gave Whitey a ring and Whitey gave it to Connolly who gave it to his wife. The problem was it was a man’s ring and Connolly’s wife had a different ring with different jewels in it. I also recall from ten years ago that Tracy Miner, Connolly’s lawyer, produced a receipt for the ring he gave his wife. I do know, as you recounted, Matt, that Tracy Miner pointed out that Connolly give his wife the ring the same year he sold one of his condos.
      P.S. I correctly used the recounted in the above sentence. In my little tome, Character Assassins, I meant to write that Thomas Sowell recounted the past history of eight ethnic groups in America (the Irish, the Germans, the Poles, the Italians, the Jews, the Blacks, the Latinos and French, as I recall Sowell’s classic Ethnic America (@1980) but instead of writing “he recounted the history”, I wrote, “He recanted the history”
      We all make mistakes!

      1. Bill:
        The only time we will stop making mistakes is after we have departed our earthly abode. The fools are those who don’t admit it when they are mistaken. It’s only those with closed minds who won’t change them. The idea of a discussion is to persuade people to think a certain way. If after hearing a compelling argument you change your mind about where the facts lead it can be said your original belief was mistaken. So be it. We’ve all been taught that if you don’t ask a question in class when you don’t understand something you won’t figure it out. William Strunk, Jr. always preached that if you didn’t know how to pronounce a word say it out loud anyway believing it worse to be irresolute than wrong. I’ve made lots of mistakes so far. I go back to the book I read and recognize many of them because as time went on I learned more and more and as I learned different things I reconsidered what I had written before as I am doing in going back through my reexamination of Whitey’s life.

        A big problem with judges is their refusal to admit they made a mistake. I remember some of them, especially one, getting red in the face and indignant when I pointed out a simple mistake he had made. Rather than correcting it, he came down on me. Judge Chmielinski used to say too many of his fellow judges think they are anoited rather than appointed. Judge Stearns showed a little of that when he noted in a footnote to his ruling against Whitey’s immunity claim that one of Carney’s argument was “a challenge to the authority of the court to review . . . ”

        It will be interesting to see if Judge Souter makes a mea culpa over his errors or will he let them go down into history so that those who don’t understand the background of these cases will believe wrongly. I assume at one time judges were not so isolated. Now they are like little kings and queens ruling over their fiefdoms. Look at all our people. Ex-presidents and their wives and kids protected by the secret service for life. Give ’em hell Harry Truman used to walk the streets of Washington, DC unescorted. Now when Obama goes out he has ten thousand lads and ladies following him around. Too many of those who have control over our lives are far removed from us common folk and feel they are infallible. It makes for a dangerous situation.

        1. Matt,

          Judge Stearns’s written decision to preclude the immunity defense contained proof positive that he was ACTUALLY biased.

          First, Stearns obviously wrote his opinion prior to his receipt of the written briefs by defense. Stearns admits that the defense had not had an opportunity to read the evidentiary centerpiece of his decision, the affidavit by Margolis.

          Second, is the “evidence” Stearns relies on. For the winning US Attorney side, Stearns relies entirely upon the Margolis affidavit. The affidavit merely states it was against internal DOJ policy for O’Sullivan to have made the immunity agreement!? That’s good enough for Stearns? (Stearns gushes about Margolis’s curriculum vitae as exemplifying a pillar of unassailable veracity. In reality, Margolis is a denizen of the same cesspool from which Stearns crawled, the Boston US Attorney’s Office. Stearns clearly doesn’t understand that membership in that gang is the opposite of a qualification.)

          Third, you point out his egotistical comment about his perceived “challenge to the authority of the court”. The amount of ego in those few words can’t be underestimated. Power trip! Proof positive he’s personally and institutionally invested.

          Fourth, is the tone and flavor of the entire decision. It is argumentative and petty, at best. For instance, when Stearns takes up each point raised by the defense he uses petty jabs such as “the defense TRUMPETS…” and “the defense HERALDS…” This is a petty and argumentative device to increase the impact of his immediately ensuing attack on the defense’s position. Conversely, he compliments the prosecutor’s positions with favorable and respectful language.

          Last but not least, Stearns cites the “paucity” of evidence introduced by the defense to support the immunity claim. Here, Stearns is being deceitful and pandering to the media. The entire point is that the defense does not and should not have to bear a pretrial evidentiary burden to preserve its constitutionally protected right to present a defense. Notwithstanding Stearns’s characterization of the defense’s evidence, the Appeals Court found substantial “undisputable” evidence in the public realm “that the Government and the defendant
          were not at arm’s length during all of the period in question, and
          that any evidence about the terms on which they dealt with each
          other could reflect on the United States Attorney’s Office as it
          was constituted in those days.”

          On a related topic, I don’t think the Appeals court’s opinion precludes a new judge from reopening the immunity issue de novo. I read their words to mean that it’s not something they considered and it’s entirely open to litigation. They will likely take up the issue substantively in the near future. Note that WBUR’s legal expert on the federal judiciary was spot on 3 months ago when he said Stearns showed his bias on the recusal issue when Stearns’s opinion failed to cite the two leading/pivotal SCOTUS cases regarding recusal! The same expert says today that the new judge MUST take up the immunity claim anew AND he/she should put it to the jury!

          “Monroe Freedman, a judicial ethics expert and law professor at Hofstra University, says a new judge will have to look at that ruling.

          “I just don’t understand how that evidence — that the government gave [Bulger] immunity — how that evidence can be excluded,” Freedman said. “That is his defense, that is his right to his day in court and it’s essential to his defense. The court of appeals, without saying it was all true, recognized that there’s very strong evidence.”

          http://www.wbur.org/2013/03/15/stearns-removed-bulger

          1. Patty:
            I don’t understand why Stearns wanted to hang on to the case so much. I also can’t figure his fellow judges didn’t suggest he step down seeing that there was a public perception that he was impartial so that the Court of Appeals didn’t have to waste its time telling him to do so. As to your points:
            1. Yes, Stearns had his decision ready before the briefs were submitted.
            2. I agree the affidavit of Margolis was nothing more than window dressing. The whole idea of Whitey’s defense is that nothing was being done by the book, a fact Judge Wolf pointed out in his decision. So Margolis suggesting that O’Sullivan exceeded his powers would only be par for the course in this case.
            3. Yes, who would ever think of challenging the court’s authority. There must be a special place in the bottom of the waterfront courthouse for such persons.
            4. I noticed that in prior decisions that there was always praise heaped upon the prosecutors brilliant arguments but a scattering of scorn at any suggestion the defendant made. I first picked that up when the Magistrate was handling the case. She seemed less than even handed when it came to the arguments.
            5. There was a paucity of evidence but that’s probably reason why it should have been flushed out more. I believe Stearns gave Carney the opportunity to do tht but not with respect to future immunity which he said was off the table. I’m not sure the defense can hide these things since the evidence given at the pre-trial hearing will not be available at the trial.
            The Court of Appeals had no choice but to find the government was not at arms length because of the millions of federal dollars its colleagues have already showered on alleged victims of Whitey and the federal government.
            I agree a new judge can open the matter of immunity. I think though that she’ll come down the same way as Stearns. It’ll be difficult for her to say her fellow jurist was wrong especially since Stearns seems so invested in the case. We have to put into the equation that these people have to work together.
            You make a lot of good points that point to Stearns’s actual bias. I’ve always been curious about the prosecutors kicking Harrington off the case and getting it over to Stearns and its dogged fight to keep him on the case. It was clear the prosecution wanted him badly which probably was enough to figure out he should not have been on the case of this notoriety.
            Anyway, Judge Stearns is no longer involved. It will just be interesting to see how the new judge deals with his past rulings. I know nothing about her but what she does in this case will tell a lot. If she starts yelling at Carney then that will be a bad sign.

    2. Bill:
      Good points about some of the issues. The Court of Appeals never should have made that error. It has a staff of hundreds to insure everything is right including the smartest law clerks money can buy. It’s hard to see how they could be so wrong about Connolly. I hope they at least correct that aspect of its opinion. If the facts are as you state about the relaese of the civil case, that indeed was poor timing and another mistake by the court. However, I believe these judges are doing their best and I do not question their integrity or sincerity. Unfortunately, they are human and make mistakes like all of us.

  7. I have to commend the Appeals court on their decision. If Stearns remained, I would believe the fix is in, period. But the inaccuracies are really bizarre. Whitey was a leader until 1999? that’s news to me. Connolly convicted of taking bribes? Perhaps the appeals court didn’t have enough time to fact check their opinion? Are they being advised by Clown Carr. It would appear that Stearns rushed his judgement about the immunity issue to beat the ruling, no? You’ve brilliantly demonstrated and deconstructed the misinformation conspiracy that completely shrouds this case.. I don’t intend any disrespect, but should the integrity of the Appeals court now be questioned? Yet another crazy day in the whitey saga.

    1. Kid:
      Thanks. I suggested Stearns rushed up the immunity hearing. He’d have had inside information that the Appeals Court was going to remove him. I don’t question the integrity of the Appeals Court but I suggest its mistakes show how much the judges are ill informed about the happenings in the Whitey matter and must, as you suggest, be relying on such sources as Howie Carr. I think your last sentence appropriately sums things up much better than I could ever do: “Yet another crazy day in the whitey saga.”

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