1st Circuit Respectfully Removes Judge from Bulger Mob Trial - Criminal Law - U.S. First Circuit
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1st Circuit Respectfully Removes Judge from Bulger Mob Trial

You might have heard of James “Whitey” Bulger. He was the alleged head of the Winter Hill Gang, also known as Boston’s chapter of La Costra Nostra. During his time as the mob boss, he is alleged to have played a part in the deaths of at least nineteen men. In 2011, after being on the lam in Santa Monica, California for over ten years, he was identified, extradited, and set for prosecution.

You probably haven’t heard of the Honorable Judge Richard G. Stearns. His long and distinguished legal career includes stops, and supervisory positions, in the United States Attorney’s Office. Though his office was not tasked with investigating Bulger, the defendant still argues for his recusal due to the appearance of bias.

Why? To understand that, you’ll need a bit more background on the Bulger case.

Bulger is claiming that he is immune from prosecution pursuant to a confidential informant arrangement with the FBI. Though his organization was not investigated by, nor deals arranged through, the USAO, the man who allegedly promised immunity was the late Jeremiah O'Sullivan, who worked for the task force in charge of investigating and dismantling organized crime in New England. Where did he head next? The USAO. Both the task force and the USAO worked with the FBI to investigate and prosecute organized crime members. Those ties alone aren't enough for recusal, however.

On review of a case on appeal, the standard is the familiar "abuse of discretion." The burden for forced recusal via a writ of mandamus before trial must be even higher. A defendant has to show that his right to a writ is "clear and indisputable."

While Justice Souter, writing on behalf of the court, had no doubts whatsoever about Judge Stearns's ability to remain impartial, the relevant inquiry is what a reasonable member of the public might be able to think. The objective is to protect the integrity of the justice system, not the feelings of the judge or the whims of the defendant.

So what was that additional evidence? The FBI's principal handler for the Sugar Hill snitches took bribes, the FBI passed on the names of other snitches to Bulger's family (the snitches were later murdered), and the man with the ties to both the task force and the USAO, O'Sullivan, lied in testimony to Congress. He told them that Bulger was only a bit player. Later, he was confronted with a memo in which he had said otherwise. Congress wasn't impressed with his excuses and disregarded his testimony.

Given the sordid history between the investigatory bodies, the investigator, and Bulger, plus the investigator's ties to both the task force and the USAO, and Judge Stearns's supervisory position at the time, a reasonable person could question the ability of the judge to remain impartial -- even if there is no direct evidence of a connection between the judge and the defendant.

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