Reading over the notes I took, here’s what I observed and heard in greater detail during the argument before the Court of Appeals. When I arrived at the hearing a little after nine the seventh floor courtroom was 3/4 full with about half of them men and women in pin striped suits. As the clock passed it became packed to capacity holding a full complement of ninety spectators.
J.W. Carney, Whitey’s lawyer, came in dressed in a gray suit at about 9:20 and went up to the clerk. The assistant U.S. attorney was already there. Hank Brennan, Carney’s assistant, would arrive at 9:28 in an obvious rush. The courtroom became eerily quiet as the 9:30 hour approached; you would have thought it was empty.
At 9:30 the three judge panel, Justices Souter, Lynch and Selya marched in and onto the bench set about four feet above the spectator level. Immediately J.W. stood at the podium and began his argument. No time was lost, the clock was running. He reserved with the court’s OK two minutes for rebuttal.
He began talking about 7 points: the government has presented this case as involving the most notorious of criminals who committed the most heinous crimes; yet from 72 to 95 he was never charged with a crime, that’s because he received immunity for the crime.
Judge Lynch interrupted him saying shouldn’t there be an affidavit from his client as to where and how he received that immunity. Carney said none was required. Judge Selya responded saying that may be the case but without an affidavit there are no facts before the court for it to decide the issue and the burden is on Whitey to support his assertion. Carney said he will do it at trial.
Judge Souter wanted to know if the immunity grant was given prior to the time Judge Stearns became first assistant US Attorney. Carney said it was given by O’Sullivan but avoided pinning down the date saying Whitey would testify to it. It was finally settled, as best I can tell, that it was given prior to Stearns assuming a high level position in the US Attorney’s office.
Carney continued with his argument pointing out Judge Wolf found widespread corruption in the FBI which abetted Whitey’s crime spree yet Stearns between ’82 and ’90 was chief of general crimes, chief of the criminal division, and first assistant. Stearns asserts at no time did he have any knowledge of any investigations of Whitey. Carney asserted, it is likely that a reasonable person knowing these facts would have a reasonable doubt as to Stearns’s assertion.
Judge Lynch said don’t you need to show more than you have – all you have is some rumors he might have heard something and you’re questioning his ability to sit many years later. Carney said they weren’t rumors, there were dozens of serious crimes occurring. Lynch pressed for Carney to show some connection between the acts of Whitey and Stearns’s knowledge. Carney suggested that his position as chief would require him to know what is going on with respect to this big criminal.
He said he was probably not aware because Whitey had immunity and everyone knew Bulger was off limits. Judge Selya said if Stearns had no knowledge how can he give any information about Whitey’s immunity. He said he still has the problem of no affidavit being filed. Carney was asked whether he doubted Stearns’s truthfulness when he said he had no knowledge of anything relating to Whitey.
Obviously Carney could not go there so he said the test was whether a reasonable person would believe Judge Stearns could be impartial. Judge Lynch asked whether Stearns has given any indication to the present in his handling of the case of being impartial. Carney said no.
Lynch then questioned the timeliness of the recusal motion and Carney was able to show it had been filed timely. Lynch questioned whether this was just for delay which would benefit defendant and harm prosecution, Carney assured he they would be ready for trial in June. Time was up and Carney sat down and the prosecutor rose.