J.S. Carney has gone to the Court of Appeals for the First Circuit according to a news reports here. He is asking for something that should require little thought on behalf of the Appeals court namely that Judge Stearns not be sitting on the case against Whitey Bulger. His odds of getting relief aren’t good. No one is of the mind to give Whitey the benefit of any doubt but Carney’s not going to let that deter him from giving Whitey the best possible defense.
I guess J.W. Carney figured Whitey had been put on the fast track to ADX Florence (not Italy, Colorado) which is used mainly for terrorists after he read Stearn’s decision where he told him to file a brief on the issue of whether the idea that O’Sullivan gave Whitey immunity is a matter of law for the judge to decide as the prosecutors have urged. Carney needs to get the issue to the jury if he is to have any realistic change of springing Whitey. Stearns originally agreed that it could go to the jury but is now having some doubts about it. If Judge Stearns says it is his decision obviously he’ll decide that Whitey had no immunity. This will carve the heart out of Whitey’s defense.
According to the Globe’s Shelley Murphy, Carney wrote that Whitey’s trial “will go forward under a dark cloud that threatens to taint the integrity of every aspect of the proceeding” if Stearns is allowed to sit on the case. Those are pretty strong words. But not as strong as Joan Vennochi’s, one of the few courageous newspaper writers, who said that Stearns hanging on to this case may be an example of “one more person caught up in the web of dishonor between Bulger and the FBI.”|
I’ve expressed my feeling several times that Stearns should not preside. You know my reasons for Stearns to be off the case. He was an assistant U.S. attorney in Boston and worked with and was friends with other assistant U.S. attorneys who will be witnesses in the case on the issue of whether Whitey Bulger got immunity from Jerry O’Sullivan another U.S. attorney. He was a high ranking assistant U.S. attorney in the Boston office during much of the time Whitey was running wild.
Stearns says he can be impartial but who wants a guy who was charged with bringing you to justice sitting in judgment of you many years after he didn’t bring about what he was supposed to have done. Stearns said he never was involved in an investigation of Whitey but can’t be examined about his involvement because he is the judge.
Stearns has twice turned down Carney’s request that he recuse himself. Now Carney has turned for help in another forum. The problem with Carney looking for help from the Appeals Court is that he represents Whitey Bulger. That court has had several cases that have stemmed from the actions of the FBI and Whitey Bulger and has already pretty much condemned Bulger. He’s not going to find a sympathetic ear there.
But more than that, Carney’s request to the Appeals Court may be too soon. If Stearns rules that it is a matter of law rather than of fact whether O’Sullivan could give immunity, then in a sense Stearns will not have to sit in judgment of the actions and testimony of the people he worked with in the U.S. Attorney’s office even though in another sense him making that finding will lead many to suspect he’s done that to protect his buddies.
What is really the problem is this issue does not have to exist. Every decision Stearns will make will be questioned. Why would he want to put himself in this position unless that is the case? Stearns could easily pass it on to another judge who can catch the ball in mid air and run on with it. Then there will be no second guessing.
It really seems strange that Stearns wants to create an issue where there need not be one. I suggest the standard for recusal should be if in any way you will be judged by the common man as having done something which may reflect poorly on your impartiality and you easily could have someone else do it then you should not have done it.
I’d note an old sheriff, Big Bill, has come back to town. His recent statements seems to complicate matters a little for Stearns. I’ll talk about this tomorrow.