Whitey Bulger’s Petition For Mandamus Will Fail: Like A Green Banana The Issues Aren’t Ripe

There are two parts to the trial of Whitey Bulger. The first is whether he committed one, some, or all of the 19 murders that the government has charged against him. The other aspect is whether the government gave immunity for those murders, that is, the U.S. government represented to him that in exchange for him becoming a Top Echelon Informant that the U.S. will not prosecute him for any of his crimes, including murders.

If the trial just involved the first issue, the murders, Judge Stearns would be under no cloud. No one would question his sitting as a judge. It is in the second part that the problem arises. That is the reason Whitey’s lawyer, J.W.Carney is before the Court of Appeals for the First Circuit (Appeals Court) asking it to remove Stearns.

He has a heavy burden. In most cases the Appeals Court will back up the judge and will not remove him or her except if it has no other choice. It will let things proceed along and assume it can correct any errors at a later point through the normal appeals process.

Here is an easy way out for the Appeals Court. It will to state that Carney’s filing is premature. The issue is not ripe for consideration. Judge Stearns has yet to decide whether the issue of immunity is a legal matter for the court to decide or is a factual matter that the jury will be given. If Judge Stearns decides it is a legal matter, then most of what Carney has set out in his mandamus petition is moot because the petition mainly talks about the immunity issue.

Carney should have taken a stronger and different approach in his petition anticipating this probability. He had to aver that Judge Stearns should not be in a position to decide anything with respect to the case, least of all whether the immunity issue will go to the jury. He should have stated that because of Judge Stearns’s background no matter what decision he makes in this case it will be looked upon as being biased, partial to the prosecution and antagonistic to Whitey. He would then have to point to specific facts to justify this position.

Carney cannot attack Judge Stearns personally. That puts everyone’s back to the wall plus in this case it would be wrong. Stearns has a very good reputation as a judge for his honesty, fairness and legal acumen. I am sure that Judge Stearns will give Whitey Bulger a fair trial. I know of his reputation and see that he gains nothing from doing otherwise.

I do however see that there is a public perception by those who will be watching the trial that he is too close to the happenings surrounding Whitey for him to do this. What greatly puzzles some is why is he so adamant in holding on to the case. It seems that it would have been easy to bring in another judge to do it to take away any suggestion of a taint and give Whitey a totally clean case.

Stearns is in a unique situation vis-à-vis all but one other judge in Boston (or the US). Judge Stearns was an assistant U.S. attorney in the U.S. Attorney’s office in Boston from 1982 to 1990. (Judge Mark Wolf was in that office from 1981 to 1985.) It is that office that Carney alleges knew of Whitey’s immunity and therefore did not do anything to investigate or prosecute him.

I read the mandamus filed by J.W. Carney today. If you want to read the meat of it I have posted it in the comment section today under mtc9393.

Carney says he plans to call Judge Stearns as a witness at the trial. Carney noted: “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 [Whitey],” and “[b]ecause 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.”

The Appeals Court will recognize two things. First, Judge Stearns will not be a witness if the issue of immunity is ruled out of the trial. Next, if he decided it was part of the trial, Judge Stearns has already stated he will not be a witness at the trial so it need not consider the issue of a judge testifying at a trial at which he is presiding. That presents a strange situation where a person called as a witness decides he can’t be called as a witness.

Carney says he also plans to call FBI Director Robert Mueller, a close friend of Stearns. Here again the Appeals Court will have difficulty considering this issue because it does not know if Mueller will be a witness. Stearns will hold a hearing outside the presence of the jury called a voir dire where he will decide if Mueller has anything relevant or material to the case. Stearns could find that Mueller’s knowledge is the same as his so he will not let him be called. That also is a strange situation where a friend of a potential witness is deciding whether he can be called to testify.

This is where the focus of the mandamus petition should have been. It should have stressed the public perception of having a judge decide on issues relating to the U.S. attorney’s office where he worked. It should have simply stated with sufficient facts to back it up that there will always be a problem with the case as long as Stearns remains judge.

I’m afraid the Appeal Court will give Carney’s petition short shrift. It will deny it quickly without discussing any of the issues. I’ll discuss the petition more tomorrow and as usual add my two cents to where it should have been stronger.