Appeals court considers public view on whether Whitey Bulger will get a fair trial

By Shelley Murphy, Globe Staff

A federal appeals court judge said today he is concerned the public may not believe that James “Whitey” Bulger will get a fair trial if the case goes forward before US District Court Judge Richard Stearns, who was a top federal prosecutor while the gangster was an FBI informant.

Senior Judge Bruce Selya spoke about public confidence in the courts during a hearing in Boston today where Bulger’s defense attorney, J.W. Carney Jr., asked the Court of Appeals for the First Circuit to remove Stearns from the impending Bulger trial.

“My concern is about public confidence and the public’s perception,’’ Selya, said from the bench during the oral argument. “I’m concerned about the public perception as to whether the defendant can get a fair trial under these circumstances.’’

Selya noted that Bulger, who is charged with 19 murders, has yet to prove his claim that he was granted immunity from prosecution by a former federal prosecutor. Still, he said Bulger insists that he won’t get a fair trial before Stearns because he was a prosecutor in the US Attorney’s office from 1982 to 1990 — including a stint as chief of the criminal division.

Carney, who has also said he wants to call Stearns as a witness, summarized the kind of judge he thinks should handle the Bulger trial — “a judge not connected to the most infamous period in law enforcement history in Boston.’’

Selya was joined on the bench by the chief judge of the First Circuit, Sandra Lynch, and David Souter, a retired US Supreme Court justice who sits on some cases because he is a former member of the First Circuit.

When pressed by Souter, a New Hampshire native and former prosecutor, to provide details of Bulger’s alleged immunity deal, Carney disclosed some new details about Bulger’s claim that he cannot be prosecuted for allegedly participating in 19 murders because he was given immunity by the FBI and federal prosecutors in the 1980s.

While Carney has said in court papers that he intends to invoke that as a defense strategy during Bulger’s upcoming trial, he has not filed any sworn affidavits detailing the alleged immunity agreement, except to say it was approved by the late Jeremiah O’Sullivan, who led an organized crime strike force.

Carney told Souter today the agreement was made sometime before December 1984, when Stearns was named chief of the criminal division in the US Attorney’s office for Massachusetts. The strike force, while based in Boston, reported directly to the attorney general in Washington.

Assistant US Attorney Zachary Hafer argued to the appeals court that Bulger’s claims of immunity were “outlandish and unsupported,” and should not be used as a basis to remove Stearns from the case.

Stearns has said in court papers that he was not involved in any investigations involving Bulger, knew nothing about any immunity agreement, and is confident he can be an impartial judge, a view that was broadly endorsed by the relatives of the men and women Bulger is accused of killing while an FBI informant.

After today’s hearing, Patricia Donahue, said she had second thoughts about whether Stearns should preside over the trial, slated for June.

“To me, it seems there is a good possibility he shouldn’t be on the case,’’ said Donahue, whose husband, Michael, was allegedly killed by Bulger in 1982 while giving a ride home to the gangster’s intended target. “I have my doubts now.’’