Whitey Bulger’s Main Defense Given A Critical Lift By An Unlikely Ally

Between A Rock
And A Hard Place

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.

20 thoughts on “Whitey Bulger’s Main Defense Given A Critical Lift By An Unlikely Ally

  1. She said this regarding a mobster client named Paocecelli of the lawyer she worked for “He had a get out of jail free card, one of these letter, it covered Anything, he was forgiven for anything he had done up until that point in time, it was a despensation for anything he might have to do in furtherance in his work for the FBI.” It covered Murder, “It covered everything! Anything up to the murder and anything aftter”

    If someone from that era who wasn’t even a lawyer heard of and saw an agreement like that, they can find someone else who has seen a similar/another agreement like that (unless she is a hell of a story teller). People need to realize, Cops/Feds are only as good as their informants and sometimes they have to make deals to further their own careers.

    1. Jim:
      I’ll be heading out in a bit and go on line at Starbucks to see if I do better with the download and will let you know. The little I heard she sounds credible especially when she says, “the FBI was in an absolute Frenzy about the Angiulos.” That’s true. I pointed out in my book that they considered this one of their biggest cases in the country at the time. Maybe that’s why the case is going on the fast track because they really do not want to get into this matter and have to pass it off as having never happened.
      I’d put a qualifier into your statement “cops/feds are only as good as their informants” by changing it to read “many cops/feds are . . . ” I’m of the school that thinks informants aren’t that important and have become a lazy cops tool. In some cases they are indispensable but in many others become a crutch. I always point to the state police investigation of Lancaster Street which was undermined by the feds as an example of a good investigation without informants. I suppose my big objection is that the use of informants has been abused to the point where we see in many cases the informant running the cops.
      I’ll let you know about the video after I can see it. I found another good Herald video relating to the press conference of the U.S. Attorney after the sentencing of Greig that I’ll comment on soon. Thanks for the information.

      1. Agreed Matt, it is just the time that I’ve spent in the Boston Police Organized Crime Unit and Asian Task Force at A-1 that has instilled my ideal for the need for informants. It doesn’t hurt to have some.

        1. Jim:
          If you have that experience then you know that informants are good at times but good hard police work can sometimes produce better results. My big problems with informants is they think they have a pass and the make the cops lazy. I’ve had some strange experiences dealing with some of them. Thinking back on it the big problems are the long term informants or those who aren’t sufficiently vetted by the lazy handlers or those who are the real gangsters who may or may not be steering you wrong. In the hands of the right cop who’ll do the hard background work they are a good source, otherwise they are dangerous.

          1. “The Quality of the Informant”

            It’s the title of a mystery novel by a retired secret service agent who also wrote “to Live and Die in LA” (one of the most true to the facts books/ movies I ‘ve encountered)

            It is also the main determining factor in how successful a criminal investigation will be. I know it appears Lancaster St was done without a CI. How many investigations like that were the SP running at the same time? I would guess none. While all major case investigators would like to bring a case without a CI/flip manpower/$$$/caseload restrictions don’t allow it.In a big city, high crime environment relying on non CI driven investigations only will allow OC crime to flourish.

            Law enforcement cannot function without CI’s and cooperating witnesses (flips). Very few of these involve long term relationships between law enforcement and the CI’s/ flips.

            In my experience it is a lack of supervision of the investigator CI /flip relationship that leads to all of the horror stories so familiar to us all including Connolly/Bulger.

            When the sh*t hits the fan, the resulting investigation inevitably holds the street level investigator and his first line supervisor (Morris) responsible for all wrong doing. There is never any attempt to hold high ups to their failures ( who was supervising Morris and why did he not find out that he was an inept supervisor?) because at that level they are all command staff in it together.

            CI’s are a necessary evil. All big agencies have good CI management SOP’s on their books. The problem is lack of supervision from the command staff to the street requiring that these rules are in fact followed.

            1. JHG:
              I appreciate your thoughts since I recognize you know as much if not more than I do about certain aspects of the system and have picked up on some of my erroneous conclusions. I’ll look forward to reading the books you’ve mentioned.
              What your post did was to make me stop and look back at some of my prior investigations to see if Lancaster Street was such an outlier or whether I had done others without the use of informers. I could think of several I had done similar to Lancanster Street where we targeted persons knowing they were involved in criminal activity and through various means were able to bring charges against them.
              I also had many cases where we did use informants. I agree totally when you suggest “it is the lack of supervision of the investigator CI/flip” that produces the horror stories. I suppose that is so because we don’t hear so much about all the times things went smoothly. I also agree there is a breakdown throughout the system and not just on the immediate supervisor. You are right that informants are a necessary evil. I have to be more precise in my condemnation of their use which I hope to do. Thanks for the input.

    1. Jim:
      Thanks for noting that for me. I’ve tried to download it but my internet is very slow so it’ll be a long while. I wonder what she is talking about. If Whitey had a letter like that I think we would have heard about it by now from his lawyers. When the FBI raided his place it could have disappeared but Carney would be yelling about that; it could be in a safe deposit box at some place. The thing that runs against this is that Whitey fled when he heard he was indicted. If he had such a gold plated guarantee he’d not have lived on the run as a hermit for so long.

      1. Does running really indicate to you that he doesn’t have ‘gold plated insurance’? As you suggested, I’ve questioned everything I think I know about the case. I have a hard time believing that Whitey fled at all. I believe he was simply retired from FBI service and sent on his way. He would have remained in retirement if not for the overwhelming and sustained pressure that was building in the international community. Pressure that resulted in finding Whitey within 2 months of bin ladens reckoning. 2 months! 53 days! When they couldn’t find him in 16 years! 16 years or 5,844 days! C’mon, I was not born yesterday. This story has already been written and I expect it’s not going to end well.

        1. KidThursday:
          Running by Whitey along with his frequent preparations for a planned escape tells me he knew he had no insurance. He had put money in safe deposit boxes throughout the US and Europe, had secured false IDs, and planned to live somewhere else if his protection broke down.
          It’s good to question everything about this case because we will never know everything that went on. Your belief he was taken in from the cold and then sent on his way has some validity to it. The FBI never really went after him until as you note it was becoming somewhat of a national embarrassment. I always attributed it to the idea that there were so many guys in the FBI that didn’t want him telling his story that they had to wait until most of them left the job before they decided to look for him. I still think if it were up to the FBI he’d still be out there. It’s not because of a gold plated insurance rather to avoid any more embarrassment. The good thing about this is I can’t say you are wrong in things relating to the dealings between Whitey and the FBI because there is so much uncertainty. I figured you weren’t born yesterday because you’re asking the right questions.

    2. Jim:
      Went to a noisy public locale and didn’t hear it too well. Will try later. The story sounds strange but the idea it was countersigned by someone out of DC would lend credence to the story. Interesting to say the least but as I said if Whitey had that letter he’d have been flashing it around.

      1. J.W.CARNEY’S PETITION FOR MANDAMUS:
        United States Court of Appeals for the First Circuit
        IN RE JAMES J. BULGER, Petitioner.
        Petition for Writ of Mandamus to the United States District
        Court, District of Massachusetts (No. 99-10371-RGS)
        PETITION FOR WRIT OF MANDAMUS
        J. W. Carney, Jr. Carney & Bassil 20 Park Plaza, Suite 1405 Boston, MA 02116 (617)338-5566
        Attorney for Petitioner James J. Bulger TABLE OF CONTENTS
        Relief Sought by the Petitioner Petitioner, James J. Bulger, defendant in United States v. James J. Bulger, No. 99-10371-RGS in the United States District Court for the District of Massachusetts, hereby petitions, pursuant to 28 U.S.C. § 1651 and Rule 21(a) of the Federal Rules of Appellate Procedure, for a writ of mandamus to be issued by this court directing the Honorable Richard G. Stearns, Judge of the United States District Court for the District of Massachusetts, to vacate his prior order denying petitioner’s renewed motion for recusal and disqualify himself from presiding in the above-named action now pending before him.
        Issues Presented in the Petition
        Does 28 U.S.C. § 455 require disqualification of Judge Richard G. Stearns where the defense intends to call him as a witness, and where his prior employment as Chief of the Criminal Division (and more senior positions) in the United States Attorney’s Office in Boston during the period when the defendant asserts that he had immunity from prosecution (and was never prosecuted for any crime) creates an appearance of partiality, where Judge Stearns has questioned the assertion of immunity?
        Statement of Facts
        Judge Richard G. Stearns joined the United States Attorney’s Office in Boston in 1982. His first position was as Chief of the General Crimes Unit. In 1984, he was appointed Chief of the Criminal Division and held this position until 1986, when he was promoted to First Assistant United States Attorney. He became a Senior Litigation Counsel in the office in 1989 and was appointed a Massachusetts judge the following year.
        In 1993, he was appointed to the United States District Court for the District of Massachusetts.
        F.B.I. Director Robert Mueller joined the United States Attorney’s Office in Boston in 1982 as Chief of the Criminal Division. He remained in that position until 1985, when he was appointed First Assistant United States Attorney. He served as either United States Attorney or Deputy United States Attorney in Boston from 1986 until 1988, when he entered private practice.
        The petitioner’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. Many in the general community during this time knew about his reputation for significant organized crime activity, including murder. The Bulger Mystique: Law Enforcement Officials Lament About an Elusive Foe: Where was Whitey? Boston Globe, Sept. 20, 1988, available at http://www.boston.com/news/packages/whitey/globe_stories/1988_the_bulger_mystique_part_3.htm(hereinafter “Bulger Mystique”). One of the government’s key witnesses, Stephen Flemmi, testified that James Bulger had a “murderous reputation” during the late 1970s and early 1980s. Flemmi Deposition, Rakes/Dammers v. United States 124:21-125:3 (Oct. 12, 2004).
        The crimes with which the petitioner is now charged, and which the U.S. Attorney’s Office, Department of Justice, and the New England Organized Crime Strike Force chose to ignore in the 1970s and 1980s, began before Judge Stearns became an A.U.S.A. in 1982. The crimes constituted the petitioner’s racketeering enterprise and were long known by those in the law enforcement community. They included, as noted in the indictment:
        • An enterprise known as “The Bulger Group” formed “in or about 1972.” “By approximately 1979, Bulger and Flemmi assumed control of the activities of this criminal organization.”
        • The enterprise was “among other things, earning money through extortion, loansharking, bookmarking, trafficking in narcotics and other controlled substances and committing crimes of violence including murder, attempted murder and assault.”
        • The following murders in 1973-1975 (of members of the Notorangeli Group): Michael Milano, Dianne Sussman, Louis Lapiana, Al Plummer, Hugh Shields, Frank Capizzi, William O’Brien, Ralph DiMasi, James Leary, Joseph Notorangeli, Al Notorangeli, James O’Toole, James Sousa, Paul McGonagle, Edward Connors, Thomas King and Francis “Buddy” Leonard.
        • Murder of Richard Castucci (December 1976).
        • Unindicted Murder of Louis Litif (1979).
        • Conspiracy to Murder Roger Wheeler (May 1981)
        • Murder of Debra Davis (Late 1981).
        • Funding Joseph McDonald and James Sims as fugitives of justice from 1975 to 1982.
        After Judge Stearns became Chief of the General Crimes Unit, the petitioner allegedly participated in the following conduct:
        • Between 1984 and 1999, the Bulger Group conducted money laundering at South Boston Liquor Mart and obtained money through extortion and “other racketeering activities.”
        These included threats, murder and attempted murder. They also included illegal possession and brandishing of firearms and ammunition as well as obstruction of justice through violence.
        • Murders of Brian Halloran and Michael Donahue (May 1982).
        • Conspiracy to Murder John Callahan (July 1982).
        • Murder of Arthur “Bucky” Barrett (July 1983).
        • The illegal, intercepted shipment of arms and ammunition to the IRA in Ireland on the Valhalla fishing vessel. John McIntyre was one of the crew members/co-conspirators on this vessel. (Fall 1984).
        • Murder of John McIntyre (November 1984).
        • Murder of Deborah Hussey (Early 1985).
        • From 1979 to 1996, extortion and extortion conspiracy through “force, violence and fear” of the following eleven people: Paul Moore, William Shea, John Cherry, Thomas Cahill, John “Red” Shea, Joseph Tower, Anthony Attardo,David Lindholm, Richard O’Brien, Richard “Jay” Johnson and Kevin Hayes. The conspiracy also involved obtaining “rent” payments from these people.
        • From around 1980 to 1990, extortion conspiracy (“fines”) of the following six people: Michael Solimando (1982-1983), Stephen Rakes (December 1983 – May 1984), Julie Rakes (December 1983 – May 1984), Richard Buccheri (August 1986 – September 1986), Raymond Slinger (1988) and Timothy Connolly.
        • From around 1980 to 1990, a narcotics distribution conspiracy, which involved obtaining “rent” payments from drug dealers and others including the following eleven people: Joseph Murray, Michael Murray, Michael Caruana,Frank LePere, David Lindholm, William Shea, Paul Moore, John “Red” Shea, Joseph Tower, John Cherry and Hobart Willis.
        • From 1984 to 1999, a money laundering conspiracy involving Stippo’s Liquor Mart, South Boston Liquor Mart, various real properties at Old Colony Avenue in South Boston, Rotary Variety Store and 337 West 4th Street in South Boston. This conspiracy was funded by “rent” payments through extortion.
        • Extortion of Stephen and Julie Rakes to purchase Stippo’s Liquor Mart (1984-1986).
        • In 1989, money laundering (sale of 295 Old Colony Ave. from the defendant to the defendant).
        • Funding John Martorano’s flight as a fugitive of justice from 1978 through 1999.
        • From around 1980 until 1993, extortion of Richard O’Brien.
        The petitioner was not charged with any of these crimes by federal prosecutors until 1994. The petitioner will show that the reason he was not prosecuted for over two decades is that he was given immunity by Jeremiah O’Sullivan, an attorney with the Justice Department. The petitioner will testify that his immunity agreement allowed him to have protection from federal prosecution. In addition to direct evidence by the petitioner, he will call witnesses and present other evidence at trial to support his immunity claim. The defense intends to call Judge Stearns and F.B.I. Director Robert Mueller, among others, regarding their respective tenures as Chief of the Criminal Division. Given the notoriety of “Whitey” Bulger, it approaches judicial notice that the law enforcement community was aware of the defendant’s criminal conduct. It will be a jury question to determine why the Chiefs of the Criminal Division did not seek to prosecute the petitioner during this period. The fact that they did not is consistent with – and corroborative of – a grant of immunity, and will be highly material at this trial.
        Reasons Why the Writ Should Issue
        I. THIS COURT SHOULD ISSUE A WRIT OF MANDAMUS BECAUSE 28 U.S.C. § 455 REQUIRES JUDGE STEARNS’ DISQUALIFICATION AND POST-TRIAL APPELLATE REVIEW WILL NOT PREVENT IRREPARABLE HARM TO THE PETITIONER.
        A. A petition for a writ of mandamus is the appropriate method of challenging a trial judge’s denial of a motion for recusal.
        Denials of motions to disqualify are reviewable via mandamus and relief will be accorded when petitioners show a “clear and indisputable right” to the writ. In re Cooper, 821 F. 2d 833, 834 (1st Cir. 1987)(internal citations omitted). A petitioner must make “a showing of both clear entitlement to the requested relief and irreparable harm without it, accompanied by a favorable balance of the equities.” In re Vasquez-Botet, 464 F.3d 54, 57 (1st Cir. 2006) quoting In re Cargill, Inc., 66 F.3d 1256, 1260 (1st Cir. 1995). “Although [courts] maintain a standing watch over attempted piecemeal review, whether by interlocutory appeal or petitions for writs of mandamus, the issue of judicial disqualification presents an extraordinary situation suitable for the exercise of [their] mandamus jurisdiction.” In re United States, 666 F.2d 690, 694 (1st Cir. 1981). “A case involving a motion for disqualification is clearly distinguishable from those where a party alleges an error of law that, despite the hardship of delay, may be fully addressed and remedied on appeal.” Id. In particular, when “the issue of partiality has been broadly publicized, and the claim of bias cannot be labeled as frivolous,” the propriety of judicial disqualification need not await end-of-case review. In re United States, 158 F.3d 26, 30 (1st Cir. 1998) quoting United States, 666 F.2d at 694. “[W]e can think of few situations more appropriate for mandamus than a judge’s clearly wrongful refusal to disqualify himself.” Rosen v. Sugarman, 357 F.2d 794, 797 (2d
        Cir. 1966).
        The petitioner has no remedy other than to seek a writ of mandamus from this court. Mandamus is the only method of correcting a judge’s erroneous refusal to recuse himself under 28 U.S.C. § 455(a). Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710, 713 (7th Cir. 1986). The petitioner cannot presently appeal under 28 U.S.C. § 1291 because Judge Stearns’ decision on the motion for recusal does not satisfy the finality requirement of that statute. See Sell v. United States, 539 U.S. 166, 176 (2003)(“The relevant jurisdictional statute, 28 U.S.C. § 1291, authorizes federal courts of appeals to review ‘final decisions of the district courts’ . . . the term ‘final decision’ normally refers to a final judgment, such as a judgment of guilt, that terminates a criminal proceeding”) (emphasis in original). Similarly, the judge’s decision regarding recusal does not fall within any of the enumerated categories for interlocutory appeal under 28 U.S.C. § 1292.
        Accordingly, the petitioner’s only avenue of relief is the filing of this petition.
        B. Judge Stearns must recuse himself pursuant to 28 U.S.C. § 455(b)(5)(iv) because the defense intends to call him and his close friend and former colleague Robert Mueller as witnesses. Throughout the 1970s and 1980s, federal, state, and local law enforcement considered the petitioner to be the head of organized crime in Boston. Yet he never once was charged with a crime by federal prosecutors in these two decades. The evidence at trial will show the reason. The petitioner was given immunity by Jeremiah O’Sullivan, an attorney of the United States Department of Justice.
        In support of the petitioner’s immunity defense, the evidence will demonstrate that high-ranking attorneys at the Department of Justice knew of the defendant’s alleged commission of dozens of federal offenses yet did nothing. The evidence will show that these same attorneys failed to investigate readily apparent leaks of confidential information from F.B.I. agents.
        This indifference on the part of Department of Justice attorneys directly corroborates the petitioner’s position that he had been granted immunity from prosecution. There is simply no other plausible explanation for why high-level law enforcement attorneys would neglect to pursue the most notorious criminal in Boston. The petitioner intends to call many of these attorneys to testify about what they knew about his criminal activity and why they did not seek to prosecute him. Specifically, the petitioner intends to call a former Chief of the Criminal Division of the United States Attorney’s Office: Judge Richard Stearns.
        The defense intends to call Judge Stearns to explain why, under his supervision, the U.S. Attorney’s Office did not prosecute the petitioner. Judge Stearns has stated that he cannot be called as a witness in this matter because he had no involvement in any investigations relating to the petitioner.
        ‘1 However, that very absence of an investigation is circumstantial “Because at no time during my service as an AUSA did I participate in or have any knowledge of any case or investigation in which defendant was a subject or target, I have nothing of a relevant or material nature to offer with regard to this case or any claim of immunity.” U.S. v. Bulger, No. 99- 10371-RGS, memorandum and Order on Defendant’s Motion for Recusal, p. 8 (July 17, 2012). Attached hereto as Exhibit 3. evidence that corroborates the petitioner’s assertion of his immunity agreement. That the Chief of the Criminal Division had no knowledge of an investigation of the petitioner strongly supports an inference that there was no such investigation. The reason that there was no investigation is that the petitioner was immune from prosecution.
        Judge Stearns has emphasized that during the relevant time period, A.U.S.A. Jeremiah O’Sullivan was primarily assigned to the New England Organized Crime Strike Force (hereinafter, “OCSF”), an entity not under the supervision of the U.S. Attorney’s Office.
        2 However, the degree of separation between OCSF and the U.S. Attorney’s Office is very much a contested issue. As the petitioner set forth in greater detail in his renewed motion for recusal (attached hereto as Exhibit 4), there is considerable evidence of overlap between the two entities and the exchange of information between them. Former United States Attorney William Weld recently recalled that he met weekly with Jeremiah O’Sullivan. Laurel J. Sweet, Weld Unable To Rule Out Whitey Immunity Claim, Boston Herald, Dec. 10, 2012, at 2. Mr.Weld described the Strike Forces as “semi-independent of the U.S. [A]ttorney’s office.” Id. Although Mr. Weld stated that the U.S. Attorney’s office did not “tell O’Sullivan what to do
        2“Contrary to defendant’s assumption, in the 1970’s and 1980’s, the United States Attorney’s Office was separate from the New England Organized Crime Strike Force (OCSF).” Id. at p. 5.in the development of a case”, his characterization of the Strike Force as “semi-independent” makes clear that it was not wholly separate from the U.S. Attorney’s Office. Id. Indeed, as noted by Chief Judge Mark Wolf, “The Strike Force and the United States Attorney’s Office did, however, interact at times.” United States v. Salemme, 164 F. Supp. 2d. 49, 55 (D. Mass. 1998). The extent of this interaction will be a critical issue at trial, and the petitioner is entitled to call witnesses with firsthand knowledge of it. As the former Chief of the Criminal Division, Judge Stearns is such a witness.
        The law – and common sense – says that a person cannot be both judge and witness. Judge Stearns has already determined that he cannot be called as a witness in this matter. The petitioner is entitled to an impartial decision regarding the admissibility of his proffered evidence, including whether he is permitted to call Judge Stearns to testify. It is a good faith, non-frivolous attempt to introduce evidence helpful to his defense. It is a question that should not be decided by the very person whose testimony is at issue. Because Judge Stearns is likely to be a material witness in this proceeding, his recusal is required.
        Similarly, Judge Stearns must recuse himself because he is a close friend of another defense witness in this case, current F.B.I. Director Robert Mueller. Like Judge Stearns, Mueller is a former Chief of the Criminal Division. The petitioner seeks to call Mueller to testify about his involvement, or lack of involvement, in any investigations pertaining to the petitioner.
        The absence of any investigation or prosecution of the petitioner is corroborative of the existence of a grant of immunity. Mueller will be questioned about the reasons that the U.S. Attorney’s office did not seek to prosecute the petitioner during this period.
        After the issuance of Judge Stearns’ first decision denying recusal, defense counsel and many members of the public learned of the close personal relationship between former colleagues Judge Stearns and Robert Mueller through a report by local radio station WBUR’s David Boeri. David Boeri, Should Bulger Trial Judge Recuse Himself? WBUR, Aug. 8, 2012 (hereinafter “Boeri”).
        Subsequently, Judge Stearns provided Mr. Boeri with a videotape of a 2006 ceremony where both Judge Stearns and Mueller spoke. Mr. Mueller concluded his remarks about Stearns by saying, “I am indeed honored to be part of this ceremony and honored to count him as a friend and mentor.” Presentation of Portrait, Honorable Richard G. Stearns, U.S. District Court, D. Mass., May 18, 2006,
        LV. Stearns returned the compliment, calling Mueller’s attendance “the greatest tribute that a friend could pay.” Id. at LXX.
        The existence of this friendship requires that Judge Stearns recuse himself. The decision by the trial judge in the petitioner’s case on the admissibility, scope, and relevance of Mueller’s testimony will be critical in this case and closely watched by the public. Someone other than Judge Stearns must be charged with fairly assessing whether Robert Mueller must testify. Judge Stearns must recuse himself pursuant to 28U.S.C. § 455(b)(5)(iv).
        C. Judge Stearns must recuse himself pursuant to 28 U.S.C. § 455(a) to avoid the appearance of a lack of impartiality.28 U.S.C. § 455(a) provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The statute requires that “courts must not only be, but must seem to be, free of bias or prejudice.” United States, 158 F.3d at 30 (emphasis added). For recusal to be required, “[t]he judge does not have to be subjectively biased or prejudiced, so long as he appears to be so.” Liteky v. United States, 510 U.S. 540, 553 n.2 (1994) (emphasis in original).
        In considering recusal, the judge must “take the objective view of an informed outsider.” In re United States, 441 F.3d 44, 67 (1st Cir. 2006). The task in determining whether to recuse “requires . . . that there be no reasonable question, in any informed person’s mind, as to the impartiality of the judge.” Id. Where recusal is a close question, the Court of Appeals for the First Circuit has directed District Judges that “the balance tips in favor of recusal.” In re Boston’s Children First, 244 F.3d 164, 167 (1st Cir. 2001).In this case, there is no possibility that Judge Stearns can avoid the appearance of partiality. A reasonable member of the public cannot be assured that Judge Stearns would appear to be impartial in all matters relative to the litigation and trial of this case. Even if Judge Stearns has no actual recollection of the investigation of the petitioner while he was an AUSA, any reasonable person would believe that he would be partial to the government in this case. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860-61 (1988)(“The judge’s forgetfulness, however, is not the sort of objectively ascertainable fact that can avoid the appearance of partiality”). The petitioner’s claim of immunity will require a critical inquiry into the manner in which the U.S. Attorney’s office operated. This inquiry will focus on Judge Stearns’ involvement and that of his former colleagues. Subjectively, Judge Stearns may be “pure in heart and incorruptible,” Id. At 861. Objectively, however, Judge Stearns would appear to have every reason to protect his former colleagues in the United States Attorney’s Office to the detriment of a full exposure of the truth.
        The appearance of partiality in this case has attracted considerable media attention and negative public opinion. Legal publication Massachusetts Lawyers Weekly polled its readers for their opinions on whether Judge Stearns should have recused himself from the case. More than half of the respondents indicated that Judge Stearns should have done so. Reader postings on-line following a story in the Boston Herald about the denial of the recusal motion also questioned Judge Stearns’ impartiality. One post asserted: I don’t agree with the judge on this point. Becausethe FBI was so imbedded with Whitey, and the Federal Prosecutor’s Office had to know to some degree what was going on, it is not too far a leap to suspect that several FBI, Federal attorneys and several BPO were in the “Whiteygate Loop.” To avoid any further appeal issues, it is easier for the judge to stand down now and get an outside appointed. IMHO [In my humble opinion], Judge Stearns has erred in this decision. He’s putting his ego ahead of common sense.
        Law professor Monroe Freedman, an advisor to the Department of Justice, examined Judge Stearns’ contention that he never had any knowledge of any case or investigation involving Bulger since the U.S. Attorney’s Criminal Division was independent from Organized Crime Strike Force. Boeri at 3. Professor Freedman remarked, “that’s much too subtle a distinction for the public and certainly for the skeptic.” Id. Writing in an op-ed piece in the Boston Globe, columnist Joan Vennochi opined that “[e]ven if a reasonable person believes Stearns knew nothing about the Bulger deal, would that same reasonable person believe he is now unbiased about the twisted ties between Bulger, the FBI, and federal prosecutors?. . . And what about Stearns’s close relationship with the head of the FBI?” Joan Vennochi, Should Bulger Judge Recuse Himself?, Boston Globe, Aug. 16, 2012.
        This proves that reasonable persons actually do question whether he is impartial, exceeding the petitioner’s burden to show that reasonable persons might do so. Accordingly, his recusal is required under 28 U.S.C. § 455(a).
        D. Absent a writ of mandamus requiring recusal, the petitioner will suffer irreparable harm that cannot be remedied by post-trial appellate review. Post-trial appellate review is inadequate because of the unique nature of this case as opposed to the typical criminal case. For various reasons peculiar to this case, it is imperative that it be tried correctly the first time. Most notably, the publicity and level of media attention in United States v. Bulger is unprecedented. The challenges of guaranteeing the petitioner a fair trial in this environment are considerable. As it stands presently, the prospect of finding impartial jurors who have not formed an opinion about the petitioner will be a daunting task. At a post-appeal retrial, this may be an insurmountable challenge. Presumably, the first trial would garner a substantial amount of media attention for several months. Each witness, each piece of evidence and each argument of counsel will be the subject of intense media scrutiny and public opinion. A conviction of any of these charges would dominate news coverage, as would the post-trial appeal process. The gruesome and violent nature of the allegations is unlikely to create feelings of good will for the petitioner among the general public. At a retrial, it is inconceivable that the court would be able to find potential jurors unaffected by the media coverage surrounding the first trial. Virtually every potential juror would have had some exposure to the troubling allegations against the petitioner and would almost certainly know that a previous jury had found him guilty. At a retrial, there is simply no way of providing the petitioner with the impartial jury to which he is entitled.
        This is an identifiable, irreparable prejudice to the petitioner.
        Any hint of judicial impartiality has the capacity to cast a pall over the entire course of the trial. “[A] trial is not likely to proceed in a very satisfactory way if an unsettled claim of judicial bias is an ever present source of tension and irritation.” Rosen, 357 F.2d at 797. “Only a final ruling on the matter by a disinterested higher court before trial can dispel this unwholesome aura.” Id. Without this court’s intervention, the petitioner’s trial will go forward under a dark cloud that threatens to taint the integrity of every aspect of the proceedings. The parties to this litigation are entitled to litigate this case with the knowledge that any issue of judicial impartiality has been resolved by a reviewing court.
        The impact of Judge Stearns’ refusal to recuse himself will reach far beyond United States v. Bulger. “A judge’s refusal to recuse himself in the face of a substantial challenge casts a shadow not only over the individual litigation but over the integrity of the federal judicial process as a whole.” Union Carbide, 782 F.2d at 712. The enormous publicity attached to this case magnifies the need to ensure public confidence in the court system. See United States, 666 F.2d at 694 (where a nonfrivolous issue of partiality has been broadly publicized, “public confidence in the courts requires that such a question be disposed of at the earliest possible opportunity.”)(internal quotations omitted). There is no question that the issue of Judge Stearns’ recusal has generated a substantial amount of public commentary and media coverage. See Defendant’s Renewed Motion for Recusal of Judge Richard G. Stearns, United States v. Bulger, No. 99-10371-RGS, pp. 18-21 (Attached hereto as Exhibit
        4). The issue of judicial impartiality is of central importance to the public’s view of the fairness of this highly publicized trial. A writ of mandamus is essential to “prevent[] injury to the public perception of the judicial system before it has a chance to occur.” United States v. Balistrieri, 779 F.2d 1191, 1205 (7th Cir. 1985). A post-trial appellate ruling in favor of the petitioner would do little to ensure public confidence in the courts. Assuming, arguendo, that such a ruling sufficiently safeguarded the rights of the petitioner, “the harm to the public’s perception of the judicial system when a judge who appears to be biased proceeds in a case is more difficult to correct.” Id.
        It is in the public interest to have a fair and impartial trial in this case where the conduct of government officials is a central issue. There is a compelling need not only to judge the guilt or innocence of the accused but also to seek the truth about corruption among federal law enforcement agencies that has resulted in millions of dollars in civil judgments and untold damage to the public confidence. It is critical that this trial be free from even the slightest hint of a government cover-up.
        Given the widely held view of rampant government corruption relating to this case, the public interest requires the unquestioned appearance of a trial before a judge of unchallenged impartiality.
        An additional risk of irreparable injury to the petitioner is that the state of the evidence may be dramatically and detrimentally different at a retrial. As the government has pointed out countless times, the petitioner and many of the witnesses are advanced in age. Decades have passed since the events that gave rise to the indictment. In the intervening years, many would-be witnesses have passed away. It is of course impossible to know what the state of the evidence would be at a retrial, but it may be reasonably assumed that some of the witnesses may suffer a diminishment in health or memory during the pendency of a post-trial appeal. Any such loss of evidence favorable to the petitioner would be irreparable and irreversible.
        Similarly, the time required for the resolution of a posttrial appeal may directly impact the petitioner’s ability to participate at a retrial. He intends to testify in his own defense. He is eager to tell the jury about his past relationship with the F.B.I., U.S. Attorney’s Office and the Department of Justice. However, the petitioner is eighty-three years old. There is no way of knowing what the state of his memory, health or mental faculties will be several years from now. What is known is that he is able to participate in his defense now. That may not be the case when the post-trial appeal process is completed.
        E. A balancing of the equities weighs in favor of the issuance of the writ of mandamus.Various factors unique to this case weigh in favor of theissuance of the requested writ of mandamus. Specifically, there are logistical issues relating to transportation and security of the defendant and witnesses that distinguish this case from a run-of-the-mill criminal case. The petitioner is not the typical pretrial detainee. Because of his notoriety and reputation, this trial will require heightened security measures. Transporting the petitioner to court each day will require a bevy of federal agents and untold spending by the federal government. Overall, the financial cost, administrative burden and toll on resources in this case are enormous. It is in the interest of the court to ensure that these costs not be incurred a second time at a retrial. A writ of mandamus on the issue of recusal makes it more likely that the case will be tried once, thus minimizing the cost to the government.
        Allowance of this petition would benefit the many people with a vested interest in a fair and final resolution of this case. There are victims and family members of deceased victims who have waited years for this trial. For their sake, it is essential that the trial be properly conducted the first time. The trial will be an emotional ordeal for many of them. It would be devastating for them to withstand that ordeal only to have a conviction overturned on appeal.
        Conclusion:
        For the foregoing reasons petitioner asks the court to issue a writ of mandamus directing Judge Stearns to Vacate his order denying petitioner’s renewed motion for recusal, and recuse himself from the case.
        J.W. Carney, Jr.

    1. Jim:
      The defense can call anyone they want. The only condition would be it would have to show the person had relevant and material testimony, I expect Governor Weld would like to be called because it would give him a forum which he needs to reintroduce himself to the public. If Stearns rules out the immunity defense then he would have noting of relevance to bring to the case.

  2. As I understand FBI procedure regarding informants, every year Morris and Connolly read a statement to their informants, Bulger and Flemmi, that they were allowed to commit crimes but not allowed to commit “violence.” FBI policy required agents to read that “no violence” policy to their informants every year and sign off that they had done so. No violent acts were sanctioned. According to Flemmi, when he asked Morris what that meant, Morris replied off the cuff that he could do anything short of murder. No murder. So, even from Flemmi’s lying lips you get the concession that Flemmi understood that he could not commit murder. That contradicts any notion that immunity covered murders. O’Sullivan’s dead. Connolly won’t testify; and even if he did he’d confirm the “no violence” policy. The FBI’s written policy is “no violence.” Even Flemmi says “no murders.” It seems to me Bulger’s “license to kill” defense is baseless and absurd. That dog won’t hunt!
    On another issue, Carr’s books are riddled with fabrications as are Lehr and O’Neill’s Black Mass. Their intent is to paint Connolly and the Bulger family in as black a light as possible, and they use rumor, innuendo and every trick of the journalists’ nefarious trade to do so. Just because a book has footnotes does not make it factual. There are lots of writers with axes to grind and false tales to spin who know how to footnote. Conversely, there are many excellent factual essays, memoirs and objective fact-filled books that lack footnotes. It’s the integrity of the author that counts and whether or not he has glaring biases. Carr, O’Neil and Lehr’s books are biased and sensationalized. Beyond that, every author has his biases, some more glaring than others.

    1. Bill:
      I’d refer you to Judge Wolf’s 661 page of findings and see that he repeated over and over again that the FBI routinely disregarded the procedures set out in the manuals. I doubt Morris or Connolly read any statements to Whitey or Stevie. They were buddies. If they did then the four of them would have enjoyed a good laugh. FBi procedures also required they file 302s about the meetings and dinners they had with the gangsters. None were found. The idea behind the Top Echelon Informant program is to bring on board criminals who you know will be committing crimes of violence but they will give you evidence against other criminals so engaged.
      Flemmi testified he was told by Connolly that he could do anything he wanted except “hit” someone. At that time he was not charged with murder so he did not have to include that among the things he had permission to do. Had he been charged with murder, he would have said something like Whitey is saying now. If Flemmi knew the Court of Appeals would say FBI agents can’t give passes, the he too would have blamed O’Sullivan. Of course Whitey’s claim is made up out of whole cloth, but he does have a chance to convince the jury it isn’t if Judge Stearns lets him go to the jury with the issue.
      I agree with most of your second paragraph but I give more credence to books that are sourced than those that aren’t. Of course it is necessary to examine the author’s biases and background. An author can have a high degree of integrity and still be ignorant of some subjects about which he or she writes. Integrity is important but a background of having worked in the area or an expertise is of equal importance.

  3. And true story about H. Carr. Everyone that has followed the Whitey saga knows Carr hates him and has always had an axe to grind. Matt is correct in his response and has also given us an inside look ( that no one else has, by the way) at one of the longest, most tangled and twisted cases any criminal to reside in Mass. Has ever created !

    1. Craigmack:
      You are right about the tale of Whitey being tangled and twisted. By this time it is hard to know where the truth lies. I have little doubt he was involved somehow in the murders, but to what extent is another question. It was in every gangsters benefit to make Whitey as black as possible. That’s what the prosecutor wanted, the more you could give them the easier it would be on the sentencing end.
      Carr, of course, makes a ton of money off making Whitey bad. So does the rest of the media as it gins up interest in him.

  4. regarding my post of dec 8th . i got that information from howie carrs book the brothers bulger. also i have heard about whitey and children for the past 25 years from a few people who lived in south boston. i believe eddie mac also mentioned in his book the topic of the so called dog room in in a gym , where whitey and others had sex with girls from cardinal cushing high school. is this blog a dry dissertation of what the legal options are regarding whitey bulger and his legal team? i am giving the thought process of someone who has heard things and read about them for years. i think it is very interesting to read all about what happened in the bulger saga all these many decades. here is a fact. no one put a pair of handcuffs on him from 1965 until 2011. amazing? you have written a good book and you have lived a life worthy of respect. your comments regarding john c lead me to conclude you like him. you go easy on john c. you do not like john morris and i can tell that from your comments. read the book by mark bowdown about the hunt for pablo escobar and you read a key component of his capture was going after his support people. catherine greig aided whitey and helped keep him free of capture, what legal nuance should keep her out of jail for 8 years? billy bulger father of 9 children failed as a catholic in not helping to bring his brother to justice. what is legal in massachusetts regarding siblings does not matter to me. those that supported whitey bulger in his days as a fugitive should pay some kind of price. what brought whitey to justice in june 2011 anyways? one story now being told is that pakistan brought up the united states failure to capture whitey bulger during the bin laden hunt. i respect your thought process, it does not mean your right.

    1. Norwood Born:
      You wrote earlier suggesting Whitey was a child molesters. whitey with children of both sexes . I asked you to source your material and you refer to a book written by Howie Carr. If you want to believe everything Howie writes about the Bulgers in his book that has no footnotes I at least hope you don’t think that Salisbury Beach is in New Hampshire. Howie is making good money of slamming all things Bulger. His book may be in parts be factual but he embellishes and makes things up where he sees fit. Any book that proposes to suggest it is factual but has no footnotes then I suggest is suspect.
      Eddie McKenzie’s a guy looking to make a buck. He ratted out his sources and like Martorano tells everyone he was not a rat. There was nothing in his story that pointed to anything like child molesting.
      What you heard and what is true are often quite different. I heard Whitey kept drugs out of Southie but knew it wasn’t true. That Howie Carr keeps repeating one theme and makes nice money off of it does not make it true.
      My goal is to try to present an accurate look at the matters surrounding Whitey and to counterbalance all the one sided prejudicial writing by people like Howie Carr and the mainstream media who have a strong bias against Whitey to the extent as I’ve written before where they have him getting into a scheme from jail with the dean of a law school.
      I don’t think I’ve gone easy on John Connolly. As I’ve noted his incarceration in Boston was right but that in Florida is wrong. Catherine Greig’s sentence was the longest for anyone in a like situation in the US. She’s gotten more than most Mafia gangsters.
      You got to think what you want. It’s best though not to believe people with axes to grind without some evidence.

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