I’ve written over the past four days how Whitey Bulger’s lawyer J.W. Carney’s attempt to have Judge Stearns removed from Whitey’s trial has to be tightened up a bit. If not it is likely the Appeals Court will slip away from having to decide the issue of Judge Stearns’s unwillingness to recuse himself. It will say the matter is not ripe for decision.
Carney must remind the Appeals Court of an earlier decision in which it stated: “The Supreme Court has recently observed that “[n]o right ranks higher than the right of the accused to a fair trial.”
Carney has to show that not only is the accused entitled to a fair trial but that the public believes that the accused has received a fair trial. (Reading that decision and considering all the publicity surrounding Whitey makes it extremely doubtful he can ever be brought to trial. It is even doubtful the Court of Appeals for the First Circuit can decide this matter impartially because of all the civil matters and criminal matters it has heard in which it accepted and adopted Whitey’s demonizing. Shouldn’t consideration be given to moving the case to another circuit? )
It is true that a person could be tried fairly behind closed doors. Yet we do not allow our trials to be carried out in secrecy. Our system of government requires our trials to be open to scrutiny by the public. The purpose of this is to show that the accused is being treated fairly and in accordance with the rule of law. So not only must a trial be legally fair it must be seen as fair.
I’ve shown how it was well-known by U.S. Attorney William Weld that Whitey was a top criminal, an FBI informant, and a target being actively investigated by his office in an electronic surveillance operation lasting several months. When Weld knew this, Judge Stearns was one of his top assistants in the criminal division.
All this seems to point to the inappropriateness of asserting the high importance of an accused being given a fair trial while at the same time having a leading member of a prosecutor’s office that was targeting the accused sitting as a judge on his case. And I’m not discussing this from the point of view of the public which has already been shown to question the wisdom of having this judge sit. I’m talking of the federal judiciary itself that seems blind to what most people believe that having a member of a prosecutor’s office that had targeted a defendant later sitting on his case is consonant with the idea of a fair trial. Rather it seems to take the idea of a fair trial and trashing it.
Add to that the notion that this judge is going to decide an issue that will determine whether he, his close friend Bob Mueller who worked with him, and his boss Bill Weld will have to be witnesses at the trial. The judge may be perfectly correct in his decision that this matter is a legal matter for him to decide and not for a jury. If he does, this makes it more tragic because most people will believe he had an ulterior motive for doing this due to his close connection to the case.
Judge Wolf demonstrates in his 661 page memorandum the Boston U.S. Attorney’s office had to know of Whitey’s status as an informant. Bill Weld went to DC to become head of the criminal division. In early January 1988 Weld’s secretary received a series of calls from Susan Murray who was passing on information from her husband Joe about Whitey and FBI Agent Connolly. Joe was a large-scale marijuana dealer who was paying Whitey in the six figures to use warehouses in South Boston to store his merchandise.
Susan told Weld’s secretary in her first two calls that came separated by two weeks that she had information on corrupt law enforcement officials working with Whitey Bulger and Stevie Flemmi and that FBI Agent Connolly was selling information to Whitey about wiretaps. Weld wrote after the second call: “I knew all this. So this woman is on the up-and-up.”
Weld had to know it from the time he was in Boston. It can be inferred that the top-level of his staff must have also known it.
Susan called a third time a week later. She said Whitey Bulger and Pat Nee killed Brian Halloran and she had an eyewitness. A week later she called again and said Whitey and Nee kidnapped and murdered Bucky Barrett. She told why they did it and where it was done.
After this call Weld dictated a memo ordering that all the information he received go to the Boston Office saying: “Both O’Sullivan and Bob Mueller are well aware of the history, and the information sounds good.”
This clearly shows that the information on Bulger was possessed by Weld and the people who had worked with him, the head of the Strike Force O’Sullivan and the head of his criminal division, Mueller, who was a close friend and workmate of Judge Stearns. The public will find it difficult to accept that Stearns as a top guy in the criminal division was kept out of the loop on this.
The idea of a fair trial is empty if the public does not believe a person received one. Why in a case of such importance will the public be left with that impression?