Whitey Bulger’s Hearing Before First Circuit Court of Appeals: Part One

At 9:30 promptly J. W. Carney rose to present his argument that Judge Richard  Stearns should not be sitting on Whitey Bulger’s case. He was facing a panel of the court that showed this matter is being given serious consideration.

Twice in my career I appeared before that court. Once when representing a Teamsters Local that was appealing a decision by the NLRB, the other when I was represented the Boston School Committee during the days of busing when it appealed the order of Judge J. Arthur Garrity shuffling students around for the purpose of achieving a racial balance in the Boston schools.  As a young lawyer I approached the hearing with some trepidation especially in the Teamsters case when I really had little to support my position.  I always appreciated the way the judges sitting on that bench were truly interested in clarifying any point raised by counsel in their briefs. Once they cleared up any issues in their minds, they stopped speaking. In other words, even though one might be arguing a position that was quite indefensible the judge never took any steps to embarrass the attorney presenting the argument.

I found this differed from the time when I argued in the Supreme Judicial Court back in the late ’60s or early ’70s when those judges would sometimes be harsh on counsel if they did not agree with the presentation. I was reminded of all this because I had not been in the Court of Appeals for many, many years and saw that it was still operating according to the same principles. It’s a very dignified court that really is looking to make the correct decision based on the law.

The panel of the court consisted of the Chief Justice, Sandra Lynch, a former opponent of mine in the busing case; Justice David Souter, who used to sit on the highest court of the land, and Justice Bruce M. Selya, the senior justice on the First Circuit and chief judge of the United States Foreign Intelligence Surveillance Court of Review .

J.W. Carney did an effective job presenting his side as did the prosecutor’s office.  I will write more about today’s hearing later but I’m waiting for a train and it is about to arrive so I’ll be brief.

The composition of the court’s panel shows that Whitey’s case is a highly publicized matter that is followed by many. The packed courtroom also showed the same thing. The crowd of media that surrounded J.W. Carney outside the court an hour after the hearing further gave proof of it.

There is no doubt this is a once in a generation case. The court recognizes this. Therefore the reason for such a distinguished panel is that the court is aware that the one issue that really matters is how will it be perceived by the public if Judge Stearns is allowed to continue sitting on the case.  There is no other issue of any significance. No one is questioning Judge Stearns’s credibility or belief that he knew nothing of Whitey Bulger while he was in a position in the US Attorney’s officer where it seemed he would have known of it.  It is whether the public will believe that because he was in the office during this time he must have known something and therefore he is not going to be impartial.

I’ve said before that to me the issue is simple.  Why have a problem when you don’t need one? J.W. Carney said he would be happy with any other judge on the court and he will be ready to go to trial in June. They’ll be no delays. It’s not like Judge Stearns is the only judge in the world who can hear the case; it’s not like it will be a recurring problem if he is required to step aside outside of the relationships among judges.

I’m not sure how the Court will decide. One thing I will say though is that however it decides no one should suggest it had any other motive than to do the right thing.  And that’s a comfort.