Chief Judge Rules in Favor of Prosecutors, Says Bulger Must Face Federal Criminal Charges for an Alleged Role in 19 Murders

The Boston Globe on June 30, 2011 released the following:

“By Milton J. Valencia, Maria Cramer and John R. Ellement, Globe Staff

US District Court Chief Judge Mark Wolf today handed federal prosecutors their first victory in the James “Whitey” Bulger prosecution and said prosecutors can focus on the case involving the 19 murders Bulger allegedly played a role in committing.

Wolf, ruling from the bench, approved a motion by US Attorney Carmen Ortiz’ office to drop a set of charges filed against Bulger in 1995 and to keep intact a second batch of charges, which include the allegations the 81-year-old reputed gangster participated in 19 killings.

“It is in the public interest that this case be dismissed,” Wolf said. “I find that the US attorney has made a good faith decision to dismiss this case.”

Speaking to a courtroom filled with relatives of Bulger’s alleged victims as well as Bulger’s two brothers, John and William, Wolf said Bulger could have raised the concern when he was first charged. But now, after having spent 16 years on the run, the judge said Bulger should not benefit from being a fugitive.

“Mr. Bulger did not appear to object to alleged judge shopping in 2000. He could have,’’ Wolf said.

The extraordinary case of Bulger had yet another unexpected twist today when authorities used a United States Coast Guard helicopter to transport Bulger from the Plymouth jail to Boston for a court appearance. Since his return to Boston last week, authorities have deployed a caravan of speeding vehicles to bring him to US District Court.

NECN-TV video shows a handcuffed 81-year-old Bulger, in an orange prison uniform, being helped out of the helicopter by a camouflage-clad officer armed with an assault rifle. Bulger, who appears to be wearing ear protectors, crouches a little as he passes under the helicopter’s rotors toward an SUV waiting a short distance away. The alleged vicious gangster stands patiently by the open door of an SUV before being placed in it.

Bulger is in the courthouse for the third time this week for two separate hearings in which lawyers and federal prosecutors will battle over the number of criminal charges Bulger will face and whether the alleged gang leader will get a court-appointed lawyer.

Wolf ‘s decision to throw out the 1995 also ends his personal inovlvement in the prosecution of Bulger and Bulger’s confidant, Stephen “The Rifleman” Flemmi, both of whom worked as informants for the FBI while engaging in years of criminal activity, allegedly including some of the 19 murders Bulger is charged with.
“My role in this case is essentially over,’’ Wolf said from the bench.

At the courthouse today, Steven Davis, the brother of Debra Davis, one of Bulger’s 19 alleged murder victims, protested when Bulger’s brothers, John and William, were allowed into the courtroom before anyone else.

The Globe’s Maria Cramer reports that security officials tried to calm Steven Davis, who was thrown out of court proceedings against a Bulger associate in the 1990s when he lost his temper. “It’s his brother. If it was your brother, I’d let youse in, too,’’ a security official told Davis.

In the courtroom, John and William Bulger sat next to each other. James Bulger, wearing the orange uniform of a federal pretrial detainee, winked at his two brothers while waiting for the court hearing to get underway.

From the bench, Wolf said he would unseal a federal affidavit late today that outlines how the government is cracking down on leaks to reporters about what Bulger has said since he was taken into custody. The issue was raised by the defense following a Boston Sunday Globe story reporting that Bulger had told officials that he had gone to Mexico during his years on the run.

Later today, US Magistrate Judge Marianne B. Bowler is slated to hold a hearing to determine whether Bulger cannot afford a lawyer.

Peter Krupp, a provisional attorney for Bulger, argued Wednesday in court documents that prosecutors were “forum shopping’’ when, earlier this week, they moved to dismiss the racketeering charges brought against Bulger in 1995. Prosecutors want to focus instead on charges brought in 2000, which includes allegations that Bulger murdered 19 people.

Krupp argued Wednesday for pursuing both sets of charges at the same time. That would keep the indictments before Wolf, the original judge in the case. The 2000 case was assigned to a different judge.

The defense lawyer accused prosecutors of wanting to drop the 1995 charges as a way to keep the case out of Wolf’s court. He suggested prosecutors wanted to avoid Wolf because of the judge’s thorough examination more than a decade ago of the government’s scandalous dealings with Bulger.

“The government would be allowed to game the system,’’ Krupp said in the court documents. “Having encountered difficult questions from this court in lengthy hearings in the late 1990s, the government chose to have the newest allegations returned in a separate indictment, so that it might be assigned a different docket and drawn to a different judge.’’

Prosecutors responded by saying that Bulger’s call for consolidation of the cases was an attempt to delay his trial on the 19 slayings by bogging down the proceedings. They also said his lawyer lacks the authority to challenge the government’s decision to drop the 1995 case, in which the most serious charge is that Bulger extorted money from bookmakers.

Prosecutors have the support of families of Bulger’s alleged victims, including Thomas Donahue of Dorchester, whose father, Michael, was gunned down, allegedly by Bulger, in 1982. Noting Bulger’s age, Donahue said that the defense tactics could prevent Bulger from standing trial at all.

“As the government tries to push the issue, the defense is just dragging their feet,’’ Donahue said. “If this man dies, everything with him dies as well, and everything that happened to my father dies.’’

Krupp has argued that investigators seized more than $800,000 that they found in Bulger’s apartment after his arrest last week and that they have vowed to seize other assets they find, leaving him incapable of hiring his own lawyer.

But prosecutors say Bulger has the means to pay for an attorney, even if that means getting the financial support of his family, including former state Senate president William M. Bulger.

The ongoing legal wrangling that has occurred in the week following Bulger’s arrest June 22 in Santa Monica, Calif., after 16 years in hiding shows the complexities of the high-profile, high-stakes case, legal analysts say.

Prosecutors and family members of some of Bulger’s alleged victims say Krupp is doing his own “forum shopping’’ in an attempt to keep the case before Judge Wolf and trying to preserve the original charges. They say he is drawing out the legal process and delaying justice.

Ortiz said in court documents that prosecutors wanted to dismiss the older case because it is weaker. Two key witnesses have died, she said, and prosecuting the case would divert resources from the more serious case.

Responding to Krupp’s motion late yesterday, prosecutors decried “the defendant’s lack of knowledge’’ of the history of the case, saying the 2000 racketeering indictment alleges “a new enterprise and a different pattern of racketeering.’’

“In fact, the only logical explanation for the defendant’s counterintuitive strategy of opposing dismissal and requesting that he be prosecuted for additional offenses is that the defendant is engaging in forum shopping,’’ prosecutors said.

Bulger, a longtime FBI informant, fled just before Christmas 1994 after his former FBI handler, John J. Connolly Jr., warned him that he was about to be indicted. Bulger and his longtime sidekick, Stephen “the Rifleman’’ Flemmi, were indicted in January 1995, along with Francis “Cadillac Frank’’ Salemme, then boss of the New England Mafia, and four other men on racketeering and extortion charges. Bulger, Flemmi, and Salemme were accused of running illegal rackets in Greater Boston and extorting money from bookmakers.

Bulger became the target of a worldwide manhunt. Flemmi tried to get the case dismissed by revealing that he and Bulger were longtime FBI informants who provided the bureau with information about local Mafia leaders, including Salemme.

He argued that their alliance was with the FBI, not with the Mafia.

But the defense backfired. Several of Bulger’s former associates began cooperating with investigators, leading them to secret graves of homicide victims and exposing Bulger’s relationship with the FBI during a series of hearings before Wolf.

The former associates’ assistance led to the 2000 indictment, which charged Bulger and Flemmi with 19 murders. Flemmi pleaded guilty to participating in 10 of those slayings and is serving a life sentence.

The son of William O’Brien, who was gunned down on Morrissey Boulevard in March 1973, said yesterday that prosecutors and the court should focus on the 2000 case.

Billy O’Brien never got to meet his father. He was born four days after the slaying, and he said the trial could help him understand the past.

“I’m just looking for this to get going, so I can put it all behind me,’’ O’Brien said. “I’ve been looking at this for so long. He needs to answer to the 19 murders that he has coming to him. They need to get on to the stuff that really does matter to me and the other victims involved in this case.’’”

To find additional federal criminal news, please read The Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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