Bulger’s immunity defense: what appearance of justice requires

Public confidence in the justice system suffered a major blow when the late-1990s trial of Stephen Flemmi revealed the federal government’s cozy relationship with Whitey Bulger and the Winter Hill gang. Federal Judge Denise Casper, the new judge recently assigned to Bulger’s trial, now has a golden opportunity to help restore that confidence. Casper’s upcoming first major ruling will be pivotal. She has to decide whether to reconsider a decision by her predecessor, Judge Richard Stearns, that Bulger and his lawyers will not be allowed to present Bulger’s asserted immunity defense to the jury unless they first convince the judge that the federal government actually granted Bulger effective immunity. In my most recent column for Mass Lawyers Weekly, I argue that Casper must take a second at this ruling.

The column after the jump...

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"Black and Whitey: How the Feds Disable Criminal Defense" for Forbes.com

Lord Conrad Black and James “Whitey” Bulger are vastly different men. But both federal prosecutions raise similar fundamental questions about the propriety of certain prosecutorial tactics that interfere with a defendant’s constitutional right to mount an adequate defense. In my most recent “Injustice Department” column for Forbes.com, I explain how these tactics virtually assure convictions, regardless of guilt or the niceties of “due process of law.” Yet these unconstitutional techniques are the rule, not the exception, when the Department of Justice really wants to win a case without the defendant putting up much of a fight.

The column after the jump... 

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Should Bulger Trial Judge Recuse Himself? Silverglate on WBUR

There are two tests for whether a judge should recuse him or herself from a trial. First, does the judge have a bias? And second, might a reasonable person question the judge's impartiality? Reasonable questions certainly exist as to whether Whitey Bulger trial judge Richard Stearns can be impartial, including the accusation that the U.S. Attorney's Office "judge shopped" to put the case in front of Judge Stearns instead of Judge Wolf. David Boeri interviews me (and others) for his WBUR report on this controversy. 
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Updates related to Harvey's
book Three Felonies a Day, a critical
take on the Justice Department

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