Part 3: Whitey Bulger’s Hearing Before First Circuit: The Prosecutor’s Pitch and The Rebuttal.

The Charles River
Mirroring the Trees

The assistant US attorney representing the prosecution Zachary Hafer arose. I apologize to him and you for not knowing his name especially since  He did a good job. He pointed out Judge Stearns has asserted he knew nothing about the immunity issue.

Judge Selya responded and said Whitey had an unorthodox or thoroughly corrupt relationship with the FBI; Stearns during the time was in a position of great responsibility, therefore isn’t the question that perhaps the public would not be confident Stearns had the necessary impartiality to sit on the case for it wasn’t just one or two FBI agents but a number of others who were corrupt.

The prosecutor repeated that Stearns said he had no knowledge of this. Judge Souter said there was an ongoing wiretap that had as its focus Bulger and given the need for renewal wouldn’t there have been discussion of it in the office. The prosecutor again relied on Judge Stearns’s statement he did not review it. Judge Lynch said what about the wiretap application. The prosecutor gave the same answer.

The court seemed bothered that a wiretap could be done and the chief of the criminal division not know who was a target. The prosecutor went on and said even though Whitey was never indicted he was investigated and this shows there was no belief he had immunity,  The prosecutor said there is no evidence Judge Stearns would not be impartial.

Judge Souter questioned this in light of Stearns’ high position in the US attorney’s office. The prosecutor answered that Judge Wolf was also involved in the US Attorney’s office at the time and he presided over the Salemme case. Judge Selya said the big difference is Salemme never sought Judge Wolf’s recusal.

Judge Selya then disclosed what the court is worried about. It is concerned with maintaining the public confidence in the judicial branch and where a defendant in a case of this high profile suggests that he won’t get a fair trial we have to consider what the public will think.

The prosecutor responded that the court should not be considering this at this time but should wait until all the facts are fully developed after trial which will show the immunity claim is unsupported and outlandish

Judge Selya responded that the court has to decide whether reasonable members of the public who are fully informed will decide the defendant received a fair trial.  He pointed out that the precedents of the court don’t give a clear answer in a case of this magnitude. The prosecutor replied the bottom line is defendant has not shown irreparable harm if Judge Stearns sits on the case. If he shouldn’t have presided over it then it can always be cured at a later date.

Time was up.

J.W. Carney stood up again for his two minutes of rebuttal. Carney argued that the public’s interest is unprecedented, during the height of Whitey’s criminal years no charges were ever brought against him, Stearns had an obligation to investigate him and he didn’t, and he feels like he is not so much representing Whitey at this point but all the people who care about the perception of the justice system like the judges, lawyers, law clerks who are invested in preserving the integrity of the system.  The irreparable harm will be the damage that will be done to the integrity of the system if Stearns is allowed to sit as a judge. The bell went off and it was over. It was in the hands of the three  judges sitting at ring side on the bench to make the final decision.



  1. Matt – thanks for providing an unvarnished, un-sensationalized summary. I wish a newspaper might one day providing the same service.

    I have to think Stearns’ recusal is the surest avenue to a just trial(for all the reasons Carney mentions). Further – it will not delay the trial and largely removes one issue for potential appeal. My question for you is this: why in the world are the prosecutors fighting this? it seems to me it would be in their interest, their BEST interest, to cede this battle in a war they are clearly positioned to win with overwhelming force. Could you speculate – or provide some insight – as to the prosecution’s motivations on this? Is it simply to deprive Carney from winning any motion at all?

    • Tom:
      You ask a question that has been bothering me. This is especially so because Ted Harrington who was similarly situated as Stearns, having been in the US Attorney’s office during these critical years, was asked to step down by the same prosecutor who is insisting that Stearns stay on the case.
      The only thing I can suggest is the prosecutors know that Stearns will rule that Carney cannot present the immunity defense to the jury. The prosecutors know that if Carney did this it will open a bag of worms and require the testimony of FBI Director Mueller who was a close friend of Stearns during the time Stearns was in the U.S. attorney’s office. There is evidence that Mueller knew about Whitey’s crimes during that time (Weld asserted as much in a notation he put on a paper). If Mueller testifies he will be asked if he ever discussed these matters with Stearns which will put Stearns in a difficult position since if he did, which seems likely, it will contradict his assertion he knew nothing about Whitey during the 1980s. it may contradict his motion which Carney wants to present at trial.
      The prosecutors also know from the John Connolly trial that a Boston jury has already disbelieved the testimony of Martorano and Weeks as to Whitey’s murders. If you add to that the claim that Whitey had immunity, there is an outside shot that Whitey can beat the case. So the best reason I can come up with is the prosecutors know Stearns is the only judge who will give them what they want.
      I don’t understand why the prosecutors don’t want a clean case nor do I understand why the judges themselves don’t see how bad this will look down the road with Stearns sitting on the case. Thanks for the comment.