A license to kill? Notorious gangster James ‘Whitey’ Bulger argues he has immunity granted by government

By Martin Finucane and Travis Andersen, Globe Staff

Notorious gangster James “Whitey” Bulger says he had a deal with the government that protected him from prosecution and that agreement still holds, meaning that the extensive federal case against him — which includes allegations of 19 murders -- should be dropped.

“The defendant reached an agreement with the Department of Justice through its agent during the 1970s. The immunity agreement fully protects the defendant from prosecution for all of the crimes currently under indictment,” Bulger’s attorneys said in a filing in US District Court in Boston today.

His indictment, the attorneys said, “directly violated the immunity agreement that the defendant had bargained for, had relied upon, and had been promised.”

Bulger, who is being held pending a November trial, was for decades a fearsome figure in Boston’s underworld, while at the same time serving as a prized informant with a cozy relationship with the FBI. Tipped off by a corrupt FBI agent, Bulger fled the area in 1995 and eluded a worldwide manhunt until he and girlfriend Catherine Greig were arrested last year in Santa Monica, Calif.

Bulger’s attorneys revealed some of their defense strategy today in a court filing calling for US District Judge Richard A. Stearns to recuse himself from the case because of his former service as a federal prosecutor.

The attorneys, J.W. Carney Jr. and Henry B. Brennan, said there was “corruption and misconduct” during the time the government had an immunity agreement with Bulger and that included the time during which Stearns was a prosecutor and headed the US attorney’s criminal division.

The attorneys said they planned to file a motion to dismiss on the grounds that Bulger had an immunity agreement. They said they also planned to seek an evidentiary hearing on that motion that could include questions for Judge Stearns himself.

“A court must hear Judge Stearns’ answers to questions at this hearing, such as, ‘Why, when you were Chief of the Criminal Division, did you not indict the defendant for these crimes or open an investigation into the FBI’s relationship with the defendant?’” the filing said.

Bulger’s attorneys had also sought to push back his November trial date. And US Magistrate Judge Marianne B. Bowler agreed at a hearing today, setting the trial for March 4, 2013. Bowler emphasized, though, that Bulger will not get another continuance in the case.

After the hearing, Carney spoke outside the courthouse about the continuance and about Bulger’s proposed motion to dismiss. Steven Davis, whose sister was allegedly one of the 19 murdered by Bulger, said he was flabbergasted by Carney’s statements and needed a moment “so my tongue don’t fall to the ground.”

“So he was allowed to murder?” Davis said. “A lawyer’s claiming Whitey Bulger had immunity to murder with orders of the government. How do I feel?”

Davis said that while Bulger may have had some leeway as an informant, it certainly did not extend to murder. He also said Carney was grasping at straws. “I don’t think he’s capable” of trying the case, Davis said.

Tom Donahue, whose father was allegedly murdered by Bulger, also cast doubt on the gangster’s immunity claim. “I’m sure that immunity goes out window when you murder dozens of people,” Donahue said.

Some in Boston reacted with disbelief when Bulger’s status as an informant was revealed, first through newspaper reports then through extensive court hearings by US District Judge Mark Wolf.

But the documents filed in court today by the defense made no effort to hide a relationship between Bulger and the government, noting that “members of the Department of Justice, including the FBI, consistently provided information to the defendant in an effort to further his criminal enterprise.”

“Based on the assistance of the Department of Justice ... the defendant became arguably the most powerful organized crime figure in Boston,” the documents said.

The documents sought to call the evidentiary hearing to “establish evidence, both direct and circumstantial, to prove the issue of immunity.”

The defense filed in court a list of “potential witnesses and non-testifying individuals whose credibility must be assessed.”

The list included who’s who of former federal prosecutors, including former Gov. William F. Weld, a former US attorney; as well as former US attorneys Frank McNamara Jr., and Wayne Budd; and former acting US attorney Jeremiah O’Sullivan, who died in 2009. The list also included federal agents, as well as state and local police officers.