Bulger defense says prosecutor gave immunity

October 25, 2012

The Boston Globe on October 25, 2012 released the following:

“Alleged deal was made decades ago

By Travis Andersen and Milton J. Valencia

Lawyers for James “Whitey” Bulger have identified the late federal prosecutor Jeremiah O’Sullivan as the federal agent who allegedly gave the notorious gangster immunity to commit his reign of terror.

Attorney J.W. Carney Jr. of Boston made the bombshell allegation in a court filing late Wednesday in which he again called for a US District Court judge to recuse himself from presiding over the case. He said the judge has an apparent conflict of interest as a former prosecutor who worked at the same time as O’Sullivan, a former US attorney who died in 2009 at age 66.

Carney said he may call US District Court Judge Richard G. Stearns and other former prosecutors as witnesses to testify about the leeway that the leadership within the US attorney’s office gave Bulger and about their failure for years to charge him with any crimes, which he said would speak to the immunity agreement that Bulger alleges that he had.

Stearns was a former federal prosecutor and chief of the criminal division during part of Bulger’s alleged reign of terror in the 1970s and 1980s. But the judge was not part of the New England Organized Crime Strike Force that had an apparent relationship with Bulger at the time and he has maintained he did not know Bulger was the target of any investigation.

Carney argued there was no line dividing work between the Strike Force and the US attorney’s office, and so prosecutors from both units shared and were aware of investigations.

The judge refused an initial request to recuse himself in ­July, citing the high standards that must be met for a judge to have to recuse himself for conflict of interest concerns.

“I have no doubt whatsoever about my ability to remain impartial at all times while presiding over the case,” Stearns said in his ruling, maintaining he had no knowledge “of any case or investigation” in which Bulger was “a subject or a target.”

But Carney said Bulger’s reputation was well known, or should have been, particularly among leaders in the US attorney’s office.

He also said that the notorious gangster, now 83, will testify to support his assertion. He said Bulger will provide “a detailed account of his receipt of immunity by O’Sullivan,” who was a member of the strike force and at one point its chief.

In one example, Carney said, Bulger will discuss a time when O’Sullivan allegedly ordered Bulger be removed from a list of targets in a horse race-fixing scheme in the early ’80s.

Brian T. Kelly, one of the prosecutors in the case, wrote a letter to Carney on Friday in which he said the government has given defense counsel ample materials pertaining to O’Sullivan, as requested, calling it typical procedure in the case.

He offered on his own, however, that “the First Circuit has already held that O’Sullivan was unaware of any promise of immunity.”

He added, “O’Sullivan himself testified under oath before Congress that he never extended immunity to either James Bulger or Stephen Flemmi.”

Carney added that, in addition to Stearns, he would call other Department of Justice leaders to testify as to why Bulger was never charged by the federal government. Those leaders would include FBI director Robert Mueller, who served as a federal prosecutor and chief of the criminal division in Massachusetts in the early 1980s, and with whom Stearns has a close relationship.

Carney said he will introduce evidence from a courthouse ceremony where Mueller characterized Stearns as a “friend and mentor,” and in which Stearns called the FBI director’s speech “the greatest tribute that a friend could pay.”

Bulger’s lead lawyer questioned whether Stearns could remain impartial in deciding whether he and Mueller could be called as a credible witness to testify about the immunity agreement, which has emerged as Bulger’s main point of defense in a trial that could trigger the death sentence.

“Federal law mandates in this situation that Judge Stearns recuse himself from this case,” Carney said in a 24-page motion filed late Wednesday. “The law — and common sense — says that a person cannot be both judge and witness. . . . To do so otherwise will put an irreparable taint on the public’s view of the fairness of the defendant’s trial, and allow citizens to believe that the infamous cover-up of misconduct by past members of the Department of Justice, the United State’s attorney’s office, and the FBI is continuing.”

Carney said Bulger wasn’t accused of any crimes in a US indictment until after Stearns, Mueller, and O’Sullivan left office, and he argued their testimony will focus on why that didn’t happen. That should be up to a jury to decide, he said.

Bulger was one of America’s Most Wanted until his arrest in June 2011 after 16 years on the lam. He is accused in a federal racketeering indictment of participating in 19 murders.

He is also the notorious gangster at the center of one of the most scandalous periods in the history of the FBI. A series of hearings in Boston in the ’90s exposed a corrupt relationship between him and his FBI handlers. During that time, he was allegedly allowed to carry out crimes including murders in exchange for working as a cooperating witness against the New England Mafia.

Carney has said that Bulger was granted immunity in exchange for his cooperation, though legal analysts have questioned whether anyone could have had a right to kill, as Bulger asserts.

US prosecutors, who have argued Stearns does not have to recuse himself, also deny Bulger had any claim of immunity.

O’Sullivan suffered a heart attack and several strokes in 1998 when he was slated to testify about Bulger and Flemmi before US District Court Judge Mark L. Wolf. O’Sullivan was in a coma for a month.

In 2002, O’Sullivan was called before Congress during the Government Reform Committee’s investigation of the Boston FBI. He denied ever protecting Bulger and Flemmi from prosecution for serious crimes.

O’Sullivan acknowledged dropping the pair from a 1978 race-fixing case against the Winter Hill Gang, of Somerville, because he said he considered them small-time players and was focused on gang leader Howie Winter.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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


Bulger plans to take the stand

August 7, 2012

The Boston Globe on August 7, 2012 released the following:

“He would detail an immunity deal

By Milton J. Valencia
Globe Staff

James “Whitey” Bulger, once America’s most wanted criminal, will for the first time ­address the charges against him, taking the stand in his own defense in hope of convincing a jury that federal officials once granted him immunity for his many crimes, his lawyer said Monday.

J.W. Carney Jr. announced that plan during a hearing in US District Court in Boston. He said Bulger wants to provide a firsthand account of his relationship with the FBI and the deal he had for working secretly as a government informant.

“He is going to tell the truth, if the judge permits him to,” Carney later told reporters outside the federal courthouse.

Bulger’s testimony could further shed light on one of the darkest eras of the FBI, as the gangster would probably describe the crimes he committed, what the FBI knew of them, and whether he received promises for his cooperation, providing a firsthand, real-life account of the type of underworld events that have become the fodder of books and movies.

Carney said that Bulger, a ­fugitive for more than 16 years until his arrest in June 2011, wants to tell his story directly to jurors at his trial, scheduled for March, rather than bring it ­before US District Court Judge Richard Stearns, who is presiding over the case.

Bulger’s lead attorney has questioned whether Stearns, who was head of the criminal division in the US attorney’s ­office in Boston during part of the time Bulger allegedly committed his crimes, would be able to look at the immunity claim impartially.

“Our client believes that he will get fairer consideration on the issue of immunity from a jury than he will from the person who was the head of the criminal bureau of the United States attorney’s office,” Carney said, adding, “I expect that he will get a fair jury and trust that they will see the truth.”

Bulger, a notorious gangster in Boston, had been secretly working as an FBI informant while allegedly carrying out his crimes. He fled shortly before a federal indictment of him came down in January 1995, after ­being tipped off by his corrupt FBI handler, John Connolly, who is now in prison for his role in a murder linked to Bulger.

Later, hearings in US District Court in Boston exposed Bulger’s inappropriate relationship with the FBI, and he was eventually charged with participating in 19 murders. He was discovered and arrested in ­Santa Monica, Calif. in a rent-controlled apartment he had been sharing with his girlfriend, Catherine Greig, since 1996.

Family members of some of Bulger’s alleged victims said outside the courthouse Monday that Carney is getting desperate in his representation of the ­notorious gangster, and they questioned how Bulger could believe he had a “license to kill.”

But they also said they look forward to his testimony.

“I want to hear what he has to say,” said Patricia Donahue, whose husband, Michael, was an innocent bystander allegedly gunned down by Bulger in 1982 while giving a friend a ride home.

Whether Bulger will be able to raise an immunity defense before jurors remains an open question, according to legal ­analysts. The courts have established, in the case of Bulger’s longtime cohort, Stephen “The Rifleman” Flemmi, that a ­defendant cannot claim immunity offered by a rogue FBI agent.

US District Court Judge Mark L. Wolf made that ruling, which was upheld by the US Court of Appeals for the First Circuit, when Flemmi said he and Bulger were granted ­immunity for passing along information incriminating the Mafia.

But Carney has said that Bulger’s deal was different: The 82-year-old gangster asserts the immunity was granted not by the FBI, but from within the US Department of Justice, which has the authority to make ­immunity agreements.

Carney would not identify the law enforcement official he said granted Bulger’s immunity, saying he will do that at trial. But he has indicated in court ­records that he plans to call as witnesses some of the former law enforcement officials who held leadership positions in the US attorney’s office, such as Stearns and William F. Weld, former governor, who was also a US attorney during a part of the time Bulger allegedly committed his crimes.

Carney also said he would introduce evidence that would impeach the credibility of past statements by former and ­deceased law enforcement officials, such as former US attorney Jeremiah O’Sullivan.

O’Sullivan was the US attorney who decided against indicting Bulger and Flemmi in a historic horse race-fixing scheme, though about 20 other gangsters, including associates in their Winter Hill gang, were charged and received lengthy prison sentences.

A.J. Manieri, a Providence-based criminal defense lawyer who has followed the Bulger case and others in organized crime, said the assertion of ­immunity seems to be a question of law that Stearns might have to decide before it reaches jurors. Prosecutors will probably argue that Bulger had no deal of immunity for crimes such as murder, and jurors should not be exposed to the assertion. Manieri said that the judge could exclude testimony that would not be relevant to the charges.

But he also said that Carney will want to show that the agreement came not from a rogue FBI agent, but from within the leadership of the Department of Justice. He said Carney could be successful just in having Stearns take up the legal ­issue because it would settle the question of law. “It’s going to be a bloodbath in there,” he said.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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