I was genuinely puzzled at why Judge Stearns would not recuse himself. I wrote yesterday how Joseph Murray’s wife gave the head of the Justice Department’s criminal division in Washington, DC information relative to Whitey Buger and Stevie Flemmi and their involvement in murders and with the FBI.
Weld referred this matter to the then US Attorney Frank McNamara and to Strike Force Chief Jeremiah O’Sullivan for investigation. I knew that Judge Stearns had been head of the criminal division when Weld there and assumed that McNamara, who had no prosecutorial criminal experience, would have kept Stearns as the head of his criminal division. I figured the first thing McNamara would have done is called Stearns in and hand him the package that Weld sent him and ask him for his advice. It turns out that would have been the last thing that McNamara would have done.
I say that because I found on the net today as I was preparing today’s post the following article in the New York Times. That article said: “Bad feelings between Mr. McNamara and some of his staff members date from his appointment in April 1987. . . . After his confirmation, Mr. McNamara angered some of his staff members by making decisions that they said were motivated by partisan politics. He demoted Richard Stearns, a liberal Democrat who was his top deputy, and replaced him with a conservative.”
I wrote earlier today that I have never questioned Stearns’s ethics or integrity. Yet I could not figure how he could have denied any knowledge of an investigation of Whitey Bulger if he had been McNamara’s head of the criminal division. Rather than being puzzled, I wrote about it in part thinking that Stearns may have forgotten that incident.
I see now the reason Stearns could claim ignorance of anything involving Joseph Murray. He was on the outs with McNamara and out of the loop. He would have known nothing about the matters that Weld referred to McNamara. For that I owe Judge Stearns an apology for assuming something I had no right to assume.
I said in my post yesterday, “Carney should be permitted to explore . . . why did McNamara do nothing about the material Weld sent to him? What was Stearns’s relationship to McNamara at that time?” Now that we know, I don’t see this as a valid avenue that Carney can use for his recusal motion.
The more and more I read and the more and more I think about the trial it seems to me that these pretrial tactics are Whitey’s way of gaining leverage. I can’t believe he thinks an acquittal is possible so it is all about the best deal possible. The FBI and Justice Department are going to be left extremely embarrassed if a trial takes place and maybe that is just enough to get Whitey a cushy prison assignment. My question is can they offer Whitey a deal and save face with the public? Will anything satisfy the victims families other than a trial and conviction landing Whitey in a Supermax prison?
Scott:
You are absolutely right. Whitey knows he will never get out of jail. Even if he won here which is almost impossible he’s still have to face murder charges in Oklahoma and Florida and then gun charges in California. The victims families are demanding just what you suggest. That ties the hands of the government and FBI who would be willing to give Whitey some place to spend the rest of his days in relative ease.
But there is more here. There’s reports that Whitey twice tried to write autobiographies. Whitey is all about Whitey and does not want others to write his life’s story. I originally thought he’d go for a deal for an easy retirement in prison but the more I thought about it he wants to tell his story. That is what the government does not want. It is what he, the victims families and the rest of us want to hear. Thanks for writing.
I’ll have to differ again. Simply because Macnamara appointed someone other than Stearns to be his deputy doesn’t logically lead to the conclusion that MacNamara didn’t give the Weld memo to Stearns. It is equally likely that MacNamara would be more motivated to give a poopstorm like that one to Stearns. Either scenario calls for speculation. The fact two experienced attorneys and prosecutors are discussing this speculation suggests Stearns should recuse himself.
Weld’s memo is even more concrete and probative evidence that Stearns is too close to hear this case. Weld wrote on his memo, “Both O’Sullivan and [Assistant United States Attorney] Bob Mueller are well aware of the history, and the information sounds good.” At that time, Mueller and Stearns were very close friends and colleagues in the US Attorney’s Office. It was nothing short of explosive information that a a senior DOJ Attorney (Weld) gave credence to the allegation that two Boston FBI agents were taking payoffs from Bulger. If Stearns’s friend and colleague, Mueller “was well aware of the history” between Bulger and FBI agents, then Stearns’s knowledge of the history is also fertile ground for cross examination. That is impossible to explore unless he recuses himself. In this manner, Stearns unconstitutionally inhibits the defense.
Lastly, there is no way Stearns can sit on the bench and retain the appearance of impartiality when his friend and colleague Mueller is on the witness stand. Mueller will be 8 feet away from Stearns trying to explain to a jury why he was “well aware of the history” of Bulger and the FBI agents and did nothing. Carney will only have to play the recording of the glowing words Stearns and Mueller exchanged publicly at Stearns’s unveiling ceremony. ** http://www.wbur.org/2012/08/09/stearns-recusal-bulger ** Admittedly, the lovefest recording may not be evidence of anything if played in a vacuum. When it is played to the jury, however, which has heard reams of nauseating evidence of the most outrageous law enforcement abuses that occurred while Stearns worked with Mueller, that lovefest recording becomes powerful evidence supporting the defense. Make no mistake about this trial. This is not the trial of James Bulger, it is the trial of the FBI and the US Attorney’s office. Carney will be the prosecutor. Every heinous crime they allege against Whitey will splatter back on the prosecution. The jury will inexorably ask themselves why didn’t anyone in law enforcement do anything to stop the violence? Who knew about this arrangement and when? The jury know the judge’s friend and colleague, now the FBI Director knew. The jury will know the Judge himself was the head of the Criminal Division of the USAO.
Actually, ignore all of this comment. It will be fun to watch a trial in which a the trial judge’s words are probative of the defense.
Even if the jury convicts Bulger, Stearns will have also helped the appeal.
We differ, yes, but we probably agree more than we differ on what you write today. When I wrote yesterday, I thought I had the smoking gun. I did this as much to show why Stearns was clearly knowledgeable about investigations of Whitey as to suggest to Stearns, (if he had a way to know about this blog) that Carney had a legitimate reason to inquire of him about his knowledge. My “smoking gun” turned out not to have been capable of firing. That is because it is more than probable that McNamara, having demoted Stearns for his political beliefs, had brought about a such a rupture between them that he was not going to seek any advice from him.
If Stearns can’t be nailed on this knowledge, I don’t know whether Carney can show he had any knowledge about Whitey.
As an aside, I happen to think Stearns is totally on the level and highly ethical. When I developed my theory based on erroneous information I was perplexed that Stearns seemed to be ignoring the obvious. Now it is not so obvious.
But I still think from a perception point of view, he should recuse himself because there will be people out there who will say he was in the US Attorney’s office that knew that the AG in charge of the criminal division in DC believed evidence of significance relating to criminal activities between Whitey and Connolly existed as you noted and he conveyed it to that office as well as to the Strike Force Chief.
You point out that just our speculating about it shows that there will always be a question about this which could easily be resolved by passing the case to another judge. I don’t understand why Stearns wants to put himself under that cloud but then I don’t know the politics among the judges. Maybe there’s an understanding you have to go home with the girl you brought to the dance, in other words you can’t unload a case once it is assigned.
The Stearns/Mueller relationship also is something that has an impact on the trial. Suppose for a second that Mueller really has nothing to offer that is relevant to the trial and he files a motion to quash any subpoena put on him by the defense and sends one of his underlings to argue it. Assuming on the merits Mueller is absolutely right. Isn’t Stearns putting himself in an awfully awkward position. If he excuses Mueller, eyebrows will be raised and everyone will be saying he gave his friend a pass. If he upholds the subpoena because he want to bend over backwards avoiding the appearance of partiality, he’ll be putting Mueller in a position that he shouldn’t be in.
That, and other decisions he will have to make will all be second guessed because he was part of the office at the time the most heinous acts were being committed.
You are correct that the trial is more than the trial of Whitey. Carney build a case for his claim block by block by showing the knowledge of those in the FBI and US Attorney’s office and asking when he has constructed his masterpiece, “is there any reason that explains why all these officials did nothing about Whitey’s criminal activities other than that he had the permission to do them.”
I noted Carney is not filing any substantive motions. He’s aiming squarely at this issue. The Boston US attorney’s office and the FBI will be on trial. Their inaction will be construed as acceptance.
Prosecutor Kelly is asking Stearns to decide that this issue cannot go in front of the jury. What if Kelly is right from a legal standpoint? Stearns would have great difficulty in deciding that issue since he would have to rule, if Kelly is correct, that the knowledge of the people he worked with in the US attorneys office cannot be inquired into. That this might be the case again seems to me to cry out for him recusing himself because no matter how he decides he’ll be criticized.
I don’t think Stearns is worried about the appeal. The Court of Appeals is probably unanimous in its thinking that Whitey is not only guilty but is a nuisance. It must feel the sooner he is abated and shipped out the better it will be for all. Thanks for writing.