Judge: James ‘Whitey’ Bulger cannot use immunity defense in trial

By John R. Ellement, Globe Staff

US District Court Judge Denise J. Casper today dealt a major setback to James “Whitey” Bulger’s defense strategy, ruling that the notorious South Boston gangster cannot claim during his trial that federal law enforcement officials immunized him from prosecution.

“The government’s motion to preclude Bulger from arguing his claim of immunity to the jury as a defense at trial ... is allowed,’’ Casper wrote in a 31-page ruling released this morning. “The Court has determined that the issue of immunity is not an issue for the jury.’’

Through his attorneys, Bulger has argued that a now-deceased federal prosecutor, Jeremiah O’Sullivan, allowed him to commit crimes, an assertion that federal prosecutors have ridiculed as “fantastical” and “absurd.”

James ‘Whitey’ Bulger (US Marshals/2011 File Photo)

Casper’s ruling essentially left intact a decision made by her predecessor in the case, US District Court Judge Richard Stearns, who wrote in March that no one in federal government could ever grant a “license to kill’’ to Bulger, who is accused of 19 murders, among other crimes.

Stearns was ordered to step aside by the US Circuit Court of Appeals for the First Circuit at the request of Bulger’s lawyers, who argued he had an appearance of a conflict of interest because he was once a federal prosecutor in Boston.

Last week, with Bulger making an unexpected appearance in court, Bulger’s attorney J.W. Carney, Jr. told Casper that Stearns’s rulings were tainted because of the appearance of conflict and must be tossed out to ensure a fair trial that will withstand being overturned on appeal if Bulger is convicted.

“The Court understands the point that defense counsel made at the April 26th hearing that to rule in Bulger’s favor on this motion would not amount to blessing an alleged ‘license to kill,’ but would mean only that Bulger could contend that an authorized government agent granted him immunity from prosecution in this district for the charges alleged in this case,’’ Casper wrote today.

She added, “however, this point does not change the Court’s independent conclusion that Bulger’s claimed immunity is not a defense to the charged crimes to be presented to the jury at trial.’’

Bulger, who once ruled with terror in Boston’s underworld, was working at the same time as an informant for the FBI, according to FBI records. While claiming that he was given immunity from prosecution, Bulger’s attorneys have made the puzzling claim that he was not an informant.

Bulger is facing racketeering charges that allege, among other things, that the 83-year-old South Boston man once participated in 19 murders.

Casper wrote that Bulger’s lawyers have said only that O’Sullivan is the federal official that set up the immunity agreement, and have only recently said that it covered the years between 1984 and 1989.

She added that Bulger’s lawyer refused to participate in a pretrial hearing where more information could emerge in support of his immunity assertions because they fear prosecutors would use Bulger’s testimony to bring new charges against him.

Overall, Casper wrote, Bulger has not provided a sound legal basis for allowing the issue to be heard by jurors at the trial, now scheduled to start in June.

“The Court concludes, on the present record, that there has been an insufficient proffer that any such promise of immunity was made by a person with actual authority to make it or that Bulger detrimentally relied upon such promise, or that any such agreement was enforceable as a matter of law,’’ Casper wrote.

Casper dealt a second blow to Bulger’s defense team, refusing to order US Attorney Carmen Ortiz and the Department of Justice to once again dig through their files for reports on the Bulger connection to federal law enforcement.

Prosecutors said last week that the files have all been scoured because of multiple civil lawsuits and the separate prosecutions of Bulger’s former underworld allies hitman John Martorano, Kevin Weeks, and Stephen Flemmi. All three are expected to be called as prosecution witnesses against Bulger.

Casper gave Bulger’s attorneys until May 6 to appeal.

Bulger, who was one of the FBI’s 10 Most Wanted, was finally captured in June 2011 in Santa Monica, Calif., where he had been living a quiet life with his long-time girlfriend in the same rent-controlled apartment for 15 years.