In a significant victory for the defense, the 1st U.S. Circuit Court of Appeals ruled that U.S. District Judge Richard Stearns must step down from the case.
Bulger’s lawyers argued that Stearns should be removed because he was a federal prosecutor in Boston in the 1980s. At the time, Bulger was working as an FBI informant while allegedly committing crimes, including murder.
Bulger claims he received immunity for his crimes from Jeremiah O’Sullivan, another federal prosecutor who worked in the same office as Stearns. During testimony before Congress in 2002, O’Sullivan denied protecting Bulger from prosecution for violent crimes. He died in 2009.
In its ruling, the appeals court said it believes that Stearns — who twice rejected the defense request to step down — is sincere in his belief that he could be impartial at Bulger’s trial.
But the court wrote, “it is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim.”
The decision was written by retired U.S. Supreme Court Justice David Souter, who sits on the federal appeals court in Boston for three months each year.
Bulger, the 83-year-old former leader of the Winter Hill Gang, is awaiting trial on charges of playing a role in 19 murders. His trial was scheduled to begin June 6, but it was not immediately clear if the trial will be postponed after it is assigned to a new judge.
In written rulings denying Bulger’s motions to step down from the case, Stearns said there is no connection between his former position as chief of the criminal division of the U.S. attorney’s office and the O’Sullivan-led organized crime strike force that worked on the Bulger investigation. Stearns also said he had no personal knowledge of the details of the strike force’s investigation of Bulger.
Although the strike force operated separately from the U.S. attorney’s office, O’Sullivan was an assistant U.S. attorney and acting U.S. attorney during the time when Bulger claims he gave him immunity. Stearns held a variety of supervisory positions in the office.
“Given the institutional ties described here, the reasonable person might well question whether a judge who bore supervisory responsibility for prosecutorial activities during some of the time at issue could suppress his inevitable feelings and remain impartial,” the court wrote in its ruling.
Bulger’s attorneys, J.W. Carney Jr. and Hank Brennan, had no immediate comment. A spokeswoman for U.S. Attorney Carmen Ortiz did not immediately return a call seeking comment.
Bulger’s role as a government informant became an embarrassment for the FBI when former agent John Connolly was convicted of tipping Bulger off that he was about to be indicted on racketeering charges. Bulger fled Boston after the tipoff in late 1994 and remained a fugitive for 16 years until he was captured in Santa Monica, Calif., in 2011.
Bulger’s lawyers recently denied that Bulger was ever an FBI informant, but prosecutors say there are more than 700 pages of informant reports on Bulger in the FBI’s files.
Earlier this month, Stearns denied Bulger’s request to present evidence to the jury of his claim that O’Sullivan gave him immunity for crimes he committed in the future, including murder. Stearns called Bulger’s contention that he had a license to kill “beyond the pale.”