US attorney rebuts Bulger claim of immunity
By Brian R. Ballou and Travis Andersen
“Being an informant in a criminal case does not in and of itself immunize you from crimes,” said US Attorney Carmen M. Ortiz, on James “Whitey” Bulger’s claim that an immunity agreement with the federal government shielded him from being charged with crimes.
A day after notorious gangster James “Whitey” Bulger claimed that an immunity agreement with the federal government shielded him from being charged with a host of crimes, US Attorney Carmen M. Ortiz said Tuesday that informants are not necessarily protected from prosecution.
“Being an informant in a criminal case does not in and of itself immunize you from crimes,” she said after an event in South Boston.
Ortiz said that former Bulger associate Stephen “The Rifleman” Flemmi had tried the same legal tactic, taking his claims all the way to the US Court of Appeals for the First Circuit in Boston, which ruled against him. Flemmi had used the tactic in a case in which he was charged with extortion and racketeering.
She said, “Regardless of what representations [Bulger] may claim law enforcement made, there’s a particular case in the First Circuit, the Flemmi case, in which that same defense, I believe, was asserted a number of years ago. And the First Circuit held that being an informant, in and of itself, and certain representations by law enforcement agents does not provide sufficient or adequate immunity.”
Bulger’s lead attorney, J.W. Carney Jr., declined on Tuesday to respond to Ortiz’s remarks.
Carney said Monday that he intends to file a motion to dismiss all charges in a sweeping indictment against Bulger, which alleges that he participated in 19 murders, on the grounds that a “representative of the federal government” granted the gangster immunity for crimes he may have committed or intended to commit.
Carney also said Bulger’s immunity agreement is different from the one that Flemmi claimed to have, but he did not elaborate. Carney has not said who offered immunity to Bulger, but he pledged to identify that person in the dismissal motion.
In a separate filing Monday in US District Court in Boston, Bulger’s lawyers wrote that the immunity agreement “fully protects the defendant from prosecution for all of the crimes currently under indictment.” The indictment spans more than 20 years dating back to the 1970s.
William P. Callahan, a former federal prosecutor, said he doubts Bulger’s immunity argument will stand up in court.
“What Bulger has at best is a rogue [federal] agent patting him on the head and saying, ‘Hey, you’ve got immunity,’” said Callahan, who now runs Unitel, a New York-based security and investigative firm.
He said that in the federal system, only a judge can sign off on a US attorney’s request to grant someone immunity, and he is not aware of any cases in which informants were given carte blanche to commit future crimes.
“I’ve only heard about it being in the present and past tense,” Callahan said. “I’ve never heard of future immunity, not in recent years. Now maybe a long time ago, [but] I can’t imagine that happening, blanket immunity to go out and commit murder.”
Callahan said he cannot imagine any prosecutor making such an offer, but it is theoretically possible.
“Let’s take a rabbit out of a hat here and say [Bulger has] some crazy US attorney who said something and they can prove it,” Callahan said. “Then you might have some smoke.”
Relatives of Bulger’s alleged victims scoffed at the gangster’s immunity claim on Monday after a hearing on the case.
Carney is also seeking to have US District Court Judge Richard G. Stearns, the presiding judge on the case, recuse himself.
Stearns was a top prosecutor in the US attorney’s office during part of the period of the indictment, and Carney has indicated he may want to call him as a witness to ask about issues related to the immunity deal.
Trial is to begin March 4.
Also Tuesday, Stearns allowed The Boston Globe to intervene as a party seeking to lift a court order sealing discovery evidence in the case. He referred the matter to Magistrate Judge Marianne B. Bowler for a report and recommendation, court records show.
Martin Finucane of the Globe staff contributed to this report. Brian R. Ballou can be reached at firstname.lastname@example.org. Follow him on Twitter at @globeballou. Travis Andersen can be reached at email@example.com. Follow him on Twitter @TAGlobe.