I suggested yesterday the Appeals Court will get around Whitey Bulger’s lawyer’s petition for mandamus because it does not like to decide things piece meal preferring to deal with all the issues of a trial on a regular appeal. If it is faced with an interlocutory matter, a minimum it will require that it be ripe for decision. Carney’s pitch depends on things that are not settled. We don’t know if the issue of “immunity” that Whitey is hanging his hat on to force Stearns’s recusal will be part of the trial. Carney argues as if it has already been determined that it will be.
He suggests in that case dealing with immunity he will need Judge Stearns and FBI Director Mueller as witnesses. However if Stearns rules immunity isn’t going to be part of the trial then there is no need for the Appeals Court to consider who the witnesses will be. I suggested that it may have been better to go right after Stearns making any decisions in the case. The emphasis should be on showing that the public will raise a question of the fairness of the trial judge making the decision on immunity.
This might sound like splitting hairs but it does away with the Appeals Court dismissing the mandamus for being premature. Carney needs to point to the perception that the public will have about Stearns’s partiality. Stearns already stated the issue will go to the jury but he seems to be considering reversing himself on that issue. He has asked Carney to reply to the prosecutors’ argument that it is not a jury issue. Carney must argue that Stearns is disabled from making that decision because it may affect him and his friend Director Mueller. Then he must show the public has good reason to believe Stearns is impartial.
I felt Carney in his petition was beating around the bush rather than charging in and grabbing the issue by the ears. He writes Whitey’s “alleged involvement in organized crime was well-known to the Department of Justice (“DOJ”), to the United States Attorney’s Office in Boston, and to the New England Organized Crime Strike Force [at the time Stearns was in that office].” But he doesn’t nail it down. He enumerates all the racketeering acts in the 1995 indictment and all the murders alleged in the murder indictment now pending before Judge Stearns. These show the acts which occurred prior to Stearns joining the office in 1982 and during the time he was there. Carney also noted that Whitey’s reputation was well-known to the public noting a 1988 Globe article on the Bulger Mystique and a statement by Flemmi.
What he doesn’t show is that it is probable that Stearns or others in the U.S. attorney’s office knew of Whitey’s reputation prior to the investigation that produced the 1995 indictment. That is crucial to his showing that Stearns is partial toward the government before the Appeals Court. If as Stearns states he doesn’t know of any investigations into Whitey by his office and Carney doesn’t show that people in his office knew about them and infer from Stearn’s position that he knew or should have known then what is there to complain about?
It reminds me of the notorious Amy Bishop case where the local cops knew and a state trooper should have known about the circumstances surrounding her killing of her brother and pointing the shotgun at others. No one in my office which had jurisdiction over the crime knew about it. Yet the public perception was that my office was at fault for her not being charged. That a lot of people know something does not necessarily mean others do but in those circumstances if you can show actual knowledge by some then you have a much stronger case to show a person should have known.
I say should have known because if you are in a group of people who know something and would be expected to talk about it then the public has a basis for concluding you did know about it, whether rightly or wrongly, and that affects its perception of whether justice is being done. Although my office was, as Carney wrote of Judge Stearns, “pure in heart and incorruptible,” the perception was left that justice was not done by us and some type of cover-up occurred. We could not have avoided that, but here there is a chance to avoid that public perception.
Carney writes that Whitey was not charged with any crimes until 1994. He states the reason is he had immunity from Jeremiah O’Sullivan. He will to prove this from the words of O’Sullivan. He also says he will show it from the inaction of the federal prosecutors. In other words, Whitey was such a notorious criminal the U.S. attorney’s office should have gone after him and the only explanation for its failure was it knew he had immunity. Stearns has already rebutted that argument by saying he, and by extension others in his office, did not know about Whitey. They can’t be expected to do an investigation about something they did not know anything about.
Carney argues that given Stearns’s position he had to know or should have known. Stearns’s first position in the office in 1984 was as chief of the General Crimes Unit, in 1984 to 1986 chief of the Criminal Division which he held until 1986 when he was promoted to First Assistant United States Attorney. Carney is right that he is in the position to know what is going on in his office. But he needs more than that to close the deal. He has to show those in the office knew about Whitey.
Carney’s best argument is pointing out there is a widespread perception in the public that Stearns should recuse himself. He points to several articles about it. But that perception showing the public has a good reason to be skeptical about Stearns without a foundation will be given little heed by the Appeals Court. He needs to give the court something to chew on so it believes the public has a right to question Stearns’s partiality.
I’ll speak to this tomorrow because there is evidence that shows the people in the U.S, attorneys office knew about Whitey.