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Originally published Thursday, March 14, 2013 at 6:42 AM

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Court removes judge from Whitey Bulger's trial

The judge who was set to preside over the trial of reputed gangster James "Whitey" Bulger was removed from the case Thursday by a federal appeals court that found his background as a former federal prosecutor could create the appearance of bias.

AP Legal Affairs Writer

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BOSTON —

The judge who was set to preside over the trial of reputed gangster James "Whitey" Bulger was removed from the case Thursday by a federal appeals court that found his background as a former federal prosecutor could create the appearance of bias.

In a significant victory for the defense, the 1st U.S. Circuit Court of Appeals ruled that U.S. District Judge Richard Stearns must step down from the case.

Bulger's lawyers argued that Stearns should be removed because he was a federal prosecutor in Boston in the 1980s. At the time, Bulger was working as an FBI informant while allegedly committing crimes, including murder.

Bulger claims he received immunity for his crimes from Jeremiah O'Sullivan, another federal prosecutor who worked in the same office as Stearns. During testimony before Congress in 2002, O'Sullivan denied protecting Bulger from prosecution for violent crimes. He died in 2009.

In its ruling, the appeals court said it believes that Stearns - who twice rejected the defense request to step down - is sincere in his belief that he could be impartial at Bulger's trial.

But the court wrote, "it is clear that a reasonable person might question the judge's ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim."

The decision was written by retired U.S. Supreme Court Justice David Souter, who sits on the federal appeals court in Boston for three months each year.

Bulger, the 83-year-old former leader of the Winter Hill Gang, is awaiting trial on charges of playing a role in 19 murders. His trial was scheduled to begin June 6, but it was not clear if it will be postponed after it is assigned to a new judge.

In written rulings denying Bulger's motions to step down from the case, Stearns said there is no connection between his former position as chief of the criminal division of the U.S. attorney's office and the O'Sullivan-led organized crime strike force that worked on the Bulger investigation. Stearns also said he had no personal knowledge of the details of the strike force's investigation of Bulger.

Although the strike force operated separately from the U.S. attorney's office, O'Sullivan was an assistant U.S. attorney and acting U.S. attorney at the time when Bulger claims he gave him immunity. Stearns held a variety of supervisory positions in the office.

"Given the institutional ties described here, the reasonable person might well question whether a judge who bore supervisory responsibility for prosecutorial activities during some of the time at issue could suppress his inevitable feelings and remain impartial," the court wrote in its ruling.

U.S. Attorney Carmen Ortiz said prosecutors will continue to prepare for trial.

"We are hopeful that this opinion will not cause a delay, as it has always been our goal to try this case as soon as possible," Ortiz said in a statement. "The victims' families have waited long enough."

A spokeswoman for Ortiz said the U.S. Department of Justice will not appeal the ruling.

Bulger's role as a government informant became an embarrassment for the FBI when former agent John Connolly was convicted of tipping Bulger off that he was about to be indicted on racketeering charges. Bulger fled Boston after the tipoff in late 1994 and remained a fugitive for 16 years until he was captured in Santa Monica, Calif., in 2011.

Bulger's lawyers recently denied that Bulger was ever an FBI informant, but prosecutors say there are more than 700 pages of informant reports on Bulger in the FBI's files.

Earlier this month, Stearns denied Bulger's request to present evidence to the jury of his claim that O'Sullivan gave him immunity for crimes he committed in the future, including murder. Stearns called Bulger's contention that he had a license to kill "beyond the pale."

In their bid to remove Stearns, Bulger's lawyers also argued that they may call Stearns as a witness during the trial. They said they may also call FBI Director Robert Mueller III, a friend of Stearns who formerly worked in the Boston U.S. attorney's office.

The appeals court said there was no need for it to rule on that part of Bulger's argument because it has agreed to remove Stearns based on his work in the prosecutor's office.

Bulger's lawyers, J.W. Carney Jr. and Hank Brennan, declined to comment on Stearns' ruling. But they said they intend to present "direct and corroborating evidence" that Bulger received immunity and that "it was not because he was an informant."

"It has always been our intention to have James Bulger testify at trial and explain to the jurors how he operated for over twenty-five years in Boston without a single charge by federal prosecutors," they said in a statement.

"We intend to call all relevant witnesses, even if they are judges, a director of the FBI, and former United States attorneys."

Peter Elikann, a Boston defense attorney who is not involved in the Bulger case, said it is extremely unusual for an appeals court to remove a judge because the courts fear "judge-shopping," in which attorneys try to find a judge more sympathetic to their clients.

"In this case, it's absolutely justified," Elikann said. "This is absolutely not a knock on Judge Stearns and his reputation for fairness and impartiality. ... It's just considered a good idea that he leave simply for the appearance of impropriety even though he hasn't committed any impropriety."

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