Reputed gangster James "Whitey" Bulger will ask his new trial judge to overturn a previous judge's ruling barring him from using his claim of immunity as a defense, Bulger's lawyers said Tuesday.
Bulger's claim that he received immunity for past and future crimes from a former federal prosecutor is a "very important issue," Bulger attorney Hank Brennan said during a court hearing.
Brennan said prosecutors have mischaracterized Bulger's immunity claim as a "license to kill." He said Bulger will testify during his trial that he received immunity for his crimes even though he was not an FBI informant, as authorities and Bulger's own associates have claimed for years.
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Bulger, now 83, is the former leader of the Winter Hill Gang. He fled Boston in late 1994 after being tipped off by his former FBI handler that he was about to be indicted.
He was one of the FBI's most wanted fugitives until he was captured in Santa Monica, Calif., in 2011. He is accusing of playing a role in 19 killings.
U.S. District Judge Richard Stearns, who was previously assigned to preside at Bulger's trial, was removed from the case earlier this month when the 1st U.S. Circuit Court of Appeals ruled that Stearns' presence could create the appearance of bias because the judge was a federal prosecutor in Boston during the time when Bulger claims he received immunity from another federal prosecutor.
Stearns had ruled that Bulger could not use his claim that prosecutor Jeremiah O'Sullivan gave him immunity for crimes he committed in the future. Stearns said he wanted more information before deciding whether Bulger could present evidence on his claim that he received immunity for past crimes.
Judge Denise Casper, who was randomly assigned to take over the case, said she would give the defense until next week to file written arguments on the immunity claim.
Assistant U.S. Attorney Brian Kelly called Bulger's claim a "so-called immunity agreement," and said prosecutors "don't think it exists."
"In fact, why have a trial if he has immunity?" Kelly said sarcastically.
Casper said testimony in Bulger's trial is expected to begin on June 10, as scheduled. Jury selection is scheduled to begin June 6.
Kelly said prosecutors plan to call about 50 witnesses and expect the trial to go through the summer. Bulger attorney J.W. Carney Jr. said he expects the trial to stretch into mid-September.
Casper said she planned a daily trial schedule of 9 a.m. to 1 p.m., but said she would hold one longer day of testimony on Wednesdays.
Carney asked if the longer day could be on Fridays, citing the long travel from the Plymouth jail where Bulger is being held to the courthouse in Boston, a trip that could take 1½ to 2 hours each way. He also cited Bulger's placement in solitary confinement for nearly two years.
"Given his age and given the fact that this type of confinement would affect any individual, I'm just concerned that if there is to be a long day, it is on Friday so that he would be able to recover over the weekend," Carney said.
Kelly questioned how stressful it could be to sit in a courtroom and said some jurors may want to spend summer weekends on Cape Cod and won't want to have a long court day on Fridays.
Casper said she will decide later.
In court documents filed Monday, Bulger's lawyers asked Casper to order prosecutors to turn over the name of an informant who they say could help them discredit an important witness against Bulger.
The defense says the informant could help them challenge the truthfulness of Kevin Weeks, a longtime Bulger associate who is expected to be a key prosecution witness.
Bulger's lawyers say the informant could contradict Weeks' past testimony about the proceeds from a $14.3 million winning lottery ticket he, Bulger and two other men shared in 1991. A former FBI agent has said two informants said the lottery ticket was a money-laundering scheme.