Like ‘Watergate’ and ‘Iran-Contra’, ‘Whitey Bulger’ stands for a group of interrelated crimes followed by less or more successful cover ups.
‘Truth will out’ we came to believe with the unraveling of the Watergate cover up. But did the truth come out as to what was being covered up? Have we been so fascinated by the serial exposures of at least misfeasance that we’ve missed the root malfeasance?
An extraordinary (I use the word precisely) ruling last week in ‘Whitey Bulger’ suggests we have.
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On March 14th, the US Court of Appeals for the First Circuit removed the trial judge assigned to Bulger’s case
…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.[1]
So wrote for the court retired US Supreme Court Justice David Souter.
Appeals courts remove trial judges far less often than blue moons recur. The departure of US District Court Judge Richard G. Stearns reduces the stink around the Bulger prosecution. But much remains to be dispersed.
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Almost never do lawyers ask judges to recuse (remove) themselves from cases, much less take the issue to an appeals court.
Judges don’t like lawyers questioning their ability to fairly rule on a case. Lawyers, who may appear in other cases before judges whose integrity they’ve questioned, have a good idea how their future clients will be treated.
Add to that reality the law: the standard an appeals court applies is almost impossible to meet. So, litigants seek removal only in extraordinary circumstances – an unquestionable appearance of bias or counsel’s desire for professional suicide.
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The law on recusal seems plain enough. ‘…28 U.S.C. § 455(a), provides that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”’[2]
But the procedural bar to enforcing the statute is almost unjumpable. To appreciate the magnitude of what the First Circuit did, some arcane law will help.
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A criminal defendant can’t appeal a judge’s denial of a motion to recuse. It’s what’s called an interlocutory order. These pre-judgment orders can only be challenged as part of an appeal of a guilty verdict. And then, the defendant must show actual bias injuring the defense. The chances of winning reversal on this ground are almost nil.
The alternative is to seek an ancient remedy, a writ of mandamus. A writ of mandamus is an order to a government official to take a particular action.
Before the writ will issue, “the petitioner must satisfy ‘the burden of showing that [his] right to issuance of the writ is clear and indisputable.’” Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 381 (2004) (quoting Kerr v. United States Dist. Court for Northern Dist. of Cal., 426 U.S. 394, 403 (1976)). A petitioner for mandamus relief must also demonstrate that he has no other adequate source of relief; that is, he must show “irreparable harm.” In re Vázquez-Botet, 464 F.3d 54, 57 (1st Cir. 2006)….[3]
From first hand experience, I can testify the courts apply these standards rigorously.
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So, as a legal matter, Judge Stearns’ removal is extraordinary. But it is also as a political matter.
Stearns was a senior prosecutor in the Massachusetts US Attorneys office when, through its Organized Crime Strike Force, its relationship with Bulger was at its most intimate and when its coverup was being revealed.
Other prosecutions involving Bulger lieutenants and his FBI handler established beyond debate the fact, if not the dimensions, of the relationship. These Justice Souter cites and relies upon.
Bulger has claimed that the Justice Department granted him a blanket immunity from prosecution for any crimes. After the First Circuit heard arguments on the writ, Stearns denied Bulger the right to raise immunity as a defense. Wrote Justice Souter:
These disclosures of record do not, of course, add up to showing that any federal officers promised the immunity the defendant claims (let alone that anyone had authority to do so). But they do tend to indicate that the Government and the defendant were not at arm’s length during all of the period in question, and that any evidence about the terms on which they dealt with each other could reflect on the United States Attorney’s Office as it was constituted in those days.[4]
And, on Judge Stearns.
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Justice Souter’s generally respectful, mildly irate, opinion is a rebuke
• to the trial judge for not removing himself,
• to the generation of US Attorneys for Massachusetts and their minions who enabled Bulger, and
• implicitly, to the current US Attorney who should have supported the defendant’s motion.
US Attorney Carmen Ortiz has the duty – one she has during her three and a half years in office shown no inclination to shoulder – to convince the public Bulger’s prosecution is not just another chapter in thirty years of Justice Department cover ups of its own criminal activities.[5]
Instead, she has defended the indefensible, as she did shielding the Justice Department against damages claims by Bulger’s victims.
It is unfortunate that on Friday the luck of the judicial draw assigned the Bulger case to US District Court Judge Denise J. Casper. She, too, came to the bench via the Massachusetts US Attorney’s office, though well after the collusion with Whitey Bulger is believed to have ended.
Says Wikipedia of Casper:
In 1999 Casper become an Assistant United States Attorney in Boston and was the Deputy Chief of the Organized Crime Drug Enforcement Task Force starting in 2004. Casper served as an Assistant U.S. Attorney in Boston from 1999 until 2005.
In judging her fitness to preside over the Bulger trial, no reasonable person looking at her last post as an AUSA could fail to impute to her some of the poisoned and poisonous culture of the US Attorneys Office – whether rightly or not.
She should recuse herself.
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In a very important article last week on an unrelated story of crime in government, Robert Parry wrote: ‘A favorite saying of Official Washington is that “the cover-up is worse than the crime.” But that presupposes you accurately understand what the crime was.’
We still do not ‘accurately understand what the crime was’ in the relationship among the Massachusetts US Attorney’s Office, the FBI, the Deparment of Justice (the explosion of this clown’s can of worms can’t have been kept localised) and Whitey Bulger’s Winter Hill Gang.
As with Watergate and Iran-Contra, we are only beginning to understand the crime we call ‘Whitey Bulger’, a crime greater – far more profound – than its cover up.
Notes
1. In re William J. Bulger, Case No. 12-2488 (1st Cir. Mar. 14, 2013). The slip opinion appears on line without pagination. http://www.ca1.uscourts.gov/opinions/allcircuits.htm See also Shelley Murphy & Sarah Schweitzer, ‘A Bulger win as trial judge is removed’, Boston Globe, Mar. 15, 2013, p. A1.
2. Id.
3. Id.
4. Id.
5. That the rot in the US Attorney’s office has spread and that the US Attorney herself is unwilling to deal with it, the suicide of Aaron Swartz has brought to national attention.
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