Federal prosecutors say James ‘Whitey’ Bulger has no proof judge is biased against him

By Milton J. Valencia, Globe Staff

Federal prosecutors argued on Friday that James “Whitey” Bulger’s calls for the judge overseeing his trial to step aside because of an apparent bias is without merit, and they urged a federal appeals court to reject the request.

Bulger’s lawyers had claimed that US District Court Judge Richard G. Stearns has a conflict of interest in overseeing the long-awaited trial, because he was a federal prosecutor during much of Bulger’s alleged reign of terror, and so he would have known of an immunity agreement that Bulger says he had with the FBI.

Bulger’s lawyers also argued that Stearns continues to have a relationship with the US Department of Justice and Robert Mueller III, the director of the FBI, what they called another conflict of interest.

Bulger’s defense team is seeking to call both Stearns and Mueller as witnesses, to demonstrate that the federal government’s failure to indict Bulger during the 1980’s when his alleged crimes were widely known shows that the gangster had some secret agreement with prosecutors.

Stearns had twice rejected the calls for him to step aside, saying he has no bias and that Bulger failed to demonstrate a conflict of interest. But the US Court of Appeals for the First Circuit agreed to hold a hearing on Bulger’s request that the higher court force Stearns off the case. A hearing is scheduled for Jan. 8.

Legal analysts have said that the appeals court’s decision to quickly hold a hearing indicates that the court hopes to resolve the matter so that the public can have faith in Bulger’s high-profile trial, and so that the matter will not interfere with the schedule June trial date.

Bulger’s lead lawyer J.W. Carney Jr. has argued that any judge overseeing the trial should have no connections to the US attorney’s office, but that he will be prepared for a June trial regardless.

But prosecutors in the office of US Attorney Carmen Ortiz argued Friday that Stearns has already resolved the question, in two decisions in July and October, both of which rejected the request.

Prosecutors cited Stearns’ argument that matters involving Bulger were handled by an Organized Crime Strike Force, which was separate from the US attorney’s office, and so he was not privy to any investigation into Bulger. Prosecutors also said that Bulger failed to show any evidence that he had any immunity agreement.

“Bulger’s failure to provide any factual support for his purported claim of immunity, let alone any factual support that Judge Stearns was aware of any such immunity agreement, dooms his claim that Judge Stearns must be disqualified,” the prosecutors said in filings with the appeals court. “Judge Stearns therefore does not have any relevant or material testimony to offer regarding Bulger’s purported claim of immunity.”

Prosecutors cited the high standard for a judge to have to recuse himself, and noted the appeals court’s own admonition in past rulings that “recusal motions are sometimes driven more by litigation strategies than by ethical concerns.”

In a separate filing Friday, lawyers for Bulger asked for a new hearing in US District Court to argue that documents prosecutors have turned over as evidence should be exempted from a protective order prohibiting their disclosure to the public.

Bulger’s lawyers argue that there is no reason to keep them secret, that the order inhibits their ability to discuss them with outside parties, and that prosecutors have simply included them in a “warehouse” of documents to be kept secret.

Bulger, 83, was once one of America’s Most Wanted until his arrest in June, 2011, after 16 years in hiding. He is accused in a racketeering indictment of participating in 19 murders, many of which occurred at a time when he was secretly working as an FBI informant. He has claimed he had an immunity from prosecution for his crimes.