I mentioned the other day how Judge Stearns is toying with the idea of tolling the death knell for Whitey. He is considering deciding that the issue of whether Whitey was given immunity is something for him to decide rather than the jury. This is a reversal of his prior position that it was in the jury’s province to make that decision.
In more basic terms here is what is going on. Whitey Bulger and Stevie Flemmi were informants for FBI Agent John Connolly for at least 15 years. After Connolly retired in late 1990 they became targets of the U.S. Attorney’s office and were indicted in 1995. Stevie was arrested; Whitey fled. Stevie stewed in jail with his big secret that he had been an FBI informant most of his adult life and here he was being treated like some sort of a criminal. The FBI who had always given him cover and bailed him out of situations was doing nothing for him.
He still hoped that Connolly who had retired had some pull left to extricate himself from his predicament. They remained in contact and worked together to figure some way for him to get out but nothing was coming of it. Finally, frustrated with the inaction Stevie decided to out himself (and Whitey) as an informant.
In doing this he said the FBI (Connolly) told him he could commit any type of crime he wanted except he couldn’t hit anyone. At that time Stevie had not been charged with any murders so he made the deal look more palatable. Judge Wolf held extensive hearings on these claims and left open the idea that Stevie may have had immunity. The government appealed and the Court of Appeals said the FBI cannot give immunity to anyone. It can only come from the U.S. Attorney. Stevie had struck out and the gangsters all began to rat each other out.
This all happened while Whitey was on the lam in parts unknown. Eventually Whitey was caught in June 2011 and brought back to face the charged. He knew saying Connolly gave him immunity would not fly. He had to come up with something more brilliant. The Court of Appeals said only the U.S. Attorney’s office could give immunity so Whitey remembered that some time around 1978 or so he met with Assistant U.S. Attorney Jeremiah O’Sullivan in a motel room and had a in-depth discussion.
Whitey will say O’Sullivan told him he could commit any crimes he wanted including murdering people. He can then say the U.S. Attorney’s office game him immunity. He’s backed up in this by his handler FBI Agent John Connolly. O’Sullivan’s dead and although he denied making a deal with Whitey in the past his testimony was so confusing his denial can easily be dismissed.
Whitey remembering this total immunity obviously sound suspect and far-fetched when you know the background of the case. But when you really have no choice you have to push the envelope.
Whitey’s lawyer J.W. Carney can make it look like it happened so that a jury will believe it. The jury will not know that Stevie tried one course that fell apart so Whitey had to make up with a different one. Carney can show the meeting, the actions by O’Sullivan and other assistant U.S. attorneys that will give credence to that assertion. He’ll paint a convincing picture that everyone acted as if Whitey had such immunity and if that is the case then he must have had it.
Judge Stearns would know the history of the case. He’d not believe that scenario. He’d rule that it could not have happened.
Judge Stearns’ problem in doing this is that he has to judge the actions of the people he worked and was friendly with over the years. He’s in a difficult position to be sitting in judgment of the actions of his friends.
If Stearns takes this matter out of the jury’s hands, it lessens Whitey’s ability to gain anything from his testimony. He’ll not be able to disassociate himself from all 19 of the murders, no one could. He may decide not to testify which will be too bad for us looking forward to hearing his side of the case.
I mention this today because the U.S. Attorney during much of this time was Governor William Weld. He is back on the scene making headlines. (Our next U.S. senator? Another try a la Jerry Brown on the West Coast? ) Weld said he didn’t hear of O’Sullivan giving immunity but according to the article he is “unable . . . to dismiss it.” Up to this time the U.S. attorneys have labeled Whitey’s claim as absurd and preposterous. When the U.S. Attorney who was close to O’Sullivan does not dismiss Whitey’s allegation outright then that seems to me it gives his claim a great lift. It also puts Judge Stearns in the position of trying to make decisions about the person who was his boss, Governor Weld.