BOSTON ‚Äî A lawyer for reputed Boston gangster James “Whitey” Bulger argued Wednesday that jurors should be allowed to hear statements that government prosecutors made about a star witness against Bulger, including that he‚Äôs “a sick individual” and not credible.
Attorney J.W. Carney Jr. said the statements made during past litigation about former Bulger cohort Stephen “The Rifleman” Flemmi are crucial to helping the jury decide Flemmi‚Äôs reliability.
“It can only be fair that the jury hear how the government characterized their witness and their evidence,” Carney told U.S. District Judge Denise Casper during a hearing.
But prosecutor Fred Wyshak said that the statements are either inadmissible or irrelevant and that Carney just wants to use them as a shock tactic.
The judge did not immediately rule on the request.
Prosecutors say Bulger, 83, is a former leader of the Winter Hill Gang and FBI informant against the New England Mafia, the gang‚Äôs main rival.
Bulger fled Boston in 1994 and remained one of the nation‚Äôs most wanted fugitives until he was captured with his girlfriend in Santa Monica, Calif., in 2011. He has pleaded not guilty to participating in 19 murders, and his attorneys deny he was an informant.
Jury selection is underway in Bulger‚Äôs trial, and opening statements are scheduled for June 12.
On Wednesday, Carney argued the statements the government made about Flemmi cannot be shielded from a jury.
In a related motion filed last week, Carney mentions a government brief in a mid-1990s case against Mafia soldier “Cadillac” Frank Salemme, a former Winter Hill Gang ally. In the brief, prosecutors say Flemmi‚Äôs “credibility is highly suspect” and his testimony in the Salemme case was “saturated with inconsistencies and fabrications.”
The motion also quotes a prosecutor from the 2009 trial in a civil lawsuit involving the estate of a former Flemmi girlfriend, Debra Davis, who authorities say was a Bulger murder victim.
“Mr. Flemmi is such a sick individual, it would seem difficult to render a judgment based on anything that he says,” the prosecutor said.
Carney asked the judge Wednesday: “How powerful could that be for the jury to hear?”
But Wyshak said the statement was taken out of context and should not be admitted in the Bulger trial.
“It‚Äôs an opinion,” he said. “It‚Äôs not an assertion of fact.”
The prosecutor said the statements about Flemmi during the Salemme case were made before Flemmi became a government witness and changed his story. He said Bulger‚Äôs defense wants to try to highlight an inconsistency by the government that doesn‚Äôt exist. Wyshak said prosecutors called Flemmi a liar at a time “when in fact he was a liar.”
“The government today still says that testimony is untrue,” he said. “Mr. Flemmi will now say that testimony is untrue.”
In a separate matter, the judge said she would consider a motion that seeks to bar from the courtroom journalists who‚Äôve written extensively about Bulger, including Boston Globe reporters Shelley Murphy and Kevin Cullen and Boston Herald columnist Howie Carr.
All three have written books about Bulger and are on the list of potential defense witnesses. Carney said they may be called if witnesses make statements on the stand that contradict what they told reporters. He argued that they should be sequestered like other witnesses to preserve the integrity of the trial. Sequestering the three journalists would prevent them from reporting on, watching or even discussing the trial.
But U.S. Attorney Brian Kelly said it was unclear if any of the three would be called to testify. He said Bulger was just trying to shut out certain reporters he dislikes.
“He hates certain members of the press, including Cullen, Murphy and Howie Carr. Especially Howie Carr,” Kelly said.