The assistant US attorney representing the prosecution Zachary Hafer arose.
I apologize to him and you for not knowing his name especially since He did a good job. He pointed out Judge Stearns has asserted he knew nothing about the immunity issue.
Judge Selya responded and said Whitey had an unorthodox or thoroughly corrupt relationship with the FBI; Stearns during the time was in a position of great responsibility, therefore isn’t the question that perhaps the public would not be confident Stearns had the necessary impartiality to sit on the case for it wasn’t just one or two FBI agents but a number of others who were corrupt.
The prosecutor repeated that Stearns said he had no knowledge of this. Judge Souter said there was an ongoing wiretap that had as its focus Bulger and given the need for renewal wouldn’t there have been discussion of it in the office. The prosecutor again relied on Judge Stearns’s statement he did not review it. Judge Lynch said what about the wiretap application. The prosecutor gave the same answer.
The court seemed bothered that a wiretap could be done and the chief of the criminal division not know who was a target. The prosecutor went on and said even though Whitey was never indicted he was investigated and this shows there was no belief he had immunity, The prosecutor said there is no evidence Judge Stearns would not be impartial.
Judge Souter questioned this in light of Stearns’ high position in the US attorney’s office. The prosecutor answered that Judge Wolf was also involved in the US Attorney’s office at the time and he presided over the Salemme case. Judge Selya said the big difference is Salemme never sought Judge Wolf’s recusal.
Judge Selya then disclosed what the court is worried about. It is concerned with maintaining the public confidence in the judicial branch and where a defendant in a case of this high profile suggests that he won’t get a fair trial we have to consider what the public will think.
The prosecutor responded that the court should not be considering this at this time but should wait until all the facts are fully developed after trial which will show the immunity claim is unsupported and outlandish
Judge Selya responded that the court has to decide whether reasonable members of the public who are fully informed will decide the defendant received a fair trial. He pointed out that the precedents of the court don’t give a clear answer in a case of this magnitude. The prosecutor replied the bottom line is defendant has not shown irreparable harm if Judge Stearns sits on the case. If he shouldn’t have presided over it then it can always be cured at a later date.
Time was up.
J.W. Carney stood up again for his two minutes of rebuttal. Carney argued that the public’s interest is unprecedented, during the height of Whitey’s criminal years no charges were ever brought against him, Stearns had an obligation to investigate him and he didn’t, and he feels like he is not so much representing Whitey at this point but all the people who care about the perception of the justice system like the judges, lawyers, law clerks who are invested in preserving the integrity of the system. The irreparable harm will be the damage that will be done to the integrity of the system if Stearns is allowed to sit as a judge. The bell went off and it was over. It was in the hands of the three judges sitting
at ring side on the bench to make the final decision.