In re Bulger

In re Bulger

Opinion

 [*43]  SOUTER, Associate Justice. James Bulger, the defendant in the federal criminal prosecution underlying this petition,² asks us to issue a writ of mandamus to require reversal of the district court's order denying a motion for recusal of the judge currently assigned to preside in the case. With great respect for the trial judge, we nonetheless grant the petition, because it is clear that a reasonable person would question the capacity for impartiality of any judicial officer with the judge's particular background in the federal prosecutorial apparatus in Boston during the period covered by the accusations.

The as-yet-untested indictment returned by a Massachusetts federal grand jury in 2001 describes the defendant as a leader of a criminal organization in Boston from 1972 to 1999. It charges him with a number of federal offenses, including violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, and it alleges that he committed 19 murders ancillary to the RICO conspiracy. The defendant's associate in the crimes charged, Stephen Flemmi, was likewise indicted and has since been convicted and sentenced on a guilty plea. See United States v. Flemmi, 225 F.3d 78, 81-83 (1st Cir. 2000); United States v. Flemmi, 245 F.3d 24, 25-27 (1st Cir. 2001); United States v. Connolly, 341 F.3d 16, 21 (1st Cir. 2003). The defendant remained a fugitive until his arrest in 2011, with these proceedings ensuing.

During the 1970s and 1980s, organized crime in Boston was investigated by the  [*44]  Federal Bureau of Investigation and prosecuted federally either by the United States Attorney's Office or by a separate team of prosecutors, called the New England Organized Crime Strike Force, which operated independently of control by the United States Attorney,  [**3] but not free from communication with his office. The defendant now alleges that over the course of that earlier period these law enforcement groups came to know of whatever evidence the Government relies upon to charge the crimes listed in the indictment. He argues that owing to his level of notoriety, the earlier prosecutors could not possibly have been ignorant of the involvement on his part that their successors now seek to show. He says that they refrained from taking action because they were aware of rumors he was working with the Government as an informant. Further, he contends that their failure to prosecute him is evidence that the Justice Department had granted him immunity for all crimes now alleged, which is at least one of his responses to the indictment.

The defendant's case was randomly assigned to the Honorable Richard G. Stearns of the United States District Court for the District of Massachusetts. Earlier in his career, Judge Stearns held a variety of managerial and supervisory appointments within the U.S. Attorney's Office in the District, and during a significant period of the time covered by the indictment he was at various times Chief of the General Crimes Unit,  [**4] Chief of the Criminal Division, First Assistant United States Attorney, and Senior Litigation Counsel.

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