It's unusual for a federal appeals court to force a judge off a case, but the trial for alleged gangster James "Whitey" Bulger is nothing, if not unusual.
Bulger is expected in court this June to face charges for 19 alleged murders committed in the '70s and '80s, but his lawyer argued Tuesday that the judge on the case could not be impartial.
A federal appeals court in Boston could decide any day whether the trial will continue with the judge, who used to be a top federal prosecutor.
Oversight And Infamy
Bulger's lawyer, J. W. Carney, says the case cannot be handled by U.S. District Judge Richard Stearns, who was a federal prosecutor at the same time other prosecutors were engaged in corrupt relationships with Bulger.
"The trial must be overseen by a judge who is not connected to the most infamous period in federal law enforcement history in Boston," Carney says.
Stearns has twice refused to step aside, insisting that as former chief of the U.S. Attorney's Criminal Division, he was separate from the organized crime task force that was in connection with Bulger, and that he did not know anything about the case.
Carney says he doubts that, but he wants to call Stearns as a witness to bolster claims that Bulger had a deal with prosecutors, granting him immunity in exchange for being an informant.
Stearns calls Carney's demands for recusal "gratuitous and overheated." Carney concedes the judge has not actually shown any bias, but experts say the real issue is whether people think he might.
"As they say, there are times when you've got to be purer than Caesar's wife and, this is one of those times," Boston attorney Harvey Silverglate says.
Silverglate says the public is already distrustful, since the prosecutors' corruption was exposed.
'Wrong Judge For The Case'
Federal law says a judge should be removed, not only if there's a conflict, but if there seems to be one — as there does in this case, Silverglate says.
"It certainly raises eyebrows and you're not only supposed to have justice, but the appearance of justice, and if people's eyebrows are raised, it's the wrong judge for the case," he says.
But prosecutors in the case accuse 83-year-old Bulger of delay tactics. Former U.S. Attorney Michael Connolly agrees there is no basis to remove Stearns.
"There is no evidence of impartiality on the part of Judge Stearns," Connolly says. "I mean it could be another motivation, obviously, in terms of delay."
Federal rules on recusal deliberately leave plenty of wiggle room, but New York University law professor Steven Gillers says it shouldn't be enough for defendants to raise questions about a judge's bias and then try to get them removed just because they questioning it.
"The back story which no one will really say, I think, is the litigant really thinks that this judge is a tough law and order judge in a case like this," he says. "We'd really like to have another judge and is looking around for another reason to get another judge."
Relatives of Bulger's alleged victims have also accused him of playing games. But some say they're now persuaded that Stearns should be removed from the case, including Patricia Donahue, whose husband, Michael, was killed in 1982.
"It's like a catch-22 for me, you know," she says. "I want to see Bulger go away but I don't people to say 'Oh he didn't get a fair trial after the fact."
After waiting decades to see Bulger brought to justice, Donahue says, she wants to make sure any conviction is air tight.