BOSTON (AP) — Lawyers for convicted gangster James "Whitey" Bulger asked a federal appeals court Monday to grant him a new trial, arguing that his defense was eviscerated when he was barred from testifying about his claim that he received immunity for his crimes.
Attorney Hank Brennan said a ruling by Judge Denise Casper prohibiting Bulger from telling the jury that a now-deceased federal prosecutor granted him immunity violated his right to a fair trial.
"The defendant has that right to testify. There is no shaking that right," Brennan said.
But Assistant U.S. Attorney Randall Kromm told the three-judge panel of the 1st U.S. Circuit Court of Appeals that Casper only prohibited Bulger from testifying about his claim of immunity, finding that he had not produced any hard evidence that such an agreement existed. Kromm said that did not prevent Bulger from testifying at all.
"He chose not to testify," Kromm said.
Bulger, the longtime leader of a violent gang that made millions from extorting drug dealers, bookmakers and others, spent 16 years as one of the nation's most wanted fugitives before being captured in Santa Monica, California, in 2011. He claimed that former prosecutor Jeremiah O'Sullivan promised him immunity in exchange for Bulger protecting him against mobsters he prosecuted.
See photos from the search for and trial of 'Whitey' Bulger:
History of Whitey Bulger
Lawyers for 'Whitey' Bulger ask court to overturn conviction
FILE--James J. "Whitey" Bulger appears in a variety of FBI file photos spanning years from 1983 to 1994. The FBI has disclosed that Bulger has helped its agents for nearly 20 years, and that secret alliance, which has raised issues of entrapment, might undo the long effort to bring down the New England mob. Whitey, long known as a leader and enforcer in the local mob, is brother of the former long-time Mass. state senate president Billy Bulger. (AP Photo/FBI, File)
BOSTON, MA - DECEMBER 6: University of Massachusetts President William Bulger, brother of fugitive Boston mobster James 'Whitey' Bulger, is sworn in before a congressional committee lead by U.S. Rep. Dan Burton, chairman of the House Committee on Government Reform probing ties between FBI agents and mob informants, at Suffolk Superior Court House December 6, 2002 in Boston, Massachusetts. Bulger refused to answer any of the committee's questions citing his Fifth Amendment right against self-incrimination. The panel wanted to question Bulger about his brother James 'Whitey' Bulger, a notorious gang leader wanted in connection with 21 murders. 'Whitey' Bulger was also a valued informant who provided the FBI with information about New England cells of the Italian Mafia. (Photo by Douglas McFadd/Getty Images)
WASHINGTON - JANUARY 2: Two Federal Bureau of Investigation (FBI) artist composite images of fugitive James 'Whitey' Bulger are shown in this handout photo released by the FBI January 2, 2003 in Washington, DC. Bulger is on the FBI's top ten most wanted fugitive list for crimes related to his involvement with the Mafia, specifically on charges of racketeering, extortion and drug trafficking. Bulger has also been charged with being involved in the murders of 21 people. (Photo by FBI/Getty Images)
View of the door of the appartment 303 of the Princess Eugenia building in Santa Monica, California, on June 23, 2011, where James 'Whitey' Bulger was arrested June 22. The FBI finally caught the 81-year-old Bulger who was living for more than 10 years, with his longtime girlfriend Catherine Greig, under the names of Charles and Carol Gasko, on the third floor of the Princess Eugenia, a three-story, 28-unit building of one- and two-bedroom apartments near the ocean in Santa Monica. AFP PHOTO / GABRIEL BOUYS (Photo credit should read GABRIEL BOUYS/AFP/Getty Images)
WASHINGTON - JUNE 19: Mary Bulger, wife of William Bulger, listens as her husband testifies before the House Government Reform Committee on Capitol Hill June 19, 2003 in Washington, DC. Bulger is the brother of James 'Whitey' Bulger, an organized crime figure on the FBI's ten most-wanted list. The committee held the hearing to investigate the use of informants by the Justice Department. (Photo by Stefan Zaklin/Getty Images)
LOS ANGELES, CA - JUNE 23: Mary Prang, Special Agent wit the FBI, adjusts a poster featuring fugitives Boston crime boss James 'Whitey' Bulger along with his companion Catherine Greig before a news conference by Steven Martinez, FBI assistant director in charge in Los Angeles, to discuss the arrest of Bulger and Greig at the Los Angeles Federal Building on June 23, 2011 in Los Angeles, California. The FBI announced June 23, 2011 that Bulger was captured in his home in Santa Monica, California by the FBI after a 26-year manhunt when a tip lead law enforcement to the reputed mobster. (Photo by Kevork Djansezian/Getty Images)
BOSTON - JUNE 24: Reporters stand outside the John Joseph Moakley United States Courthouse as James 'Whitey' Bulger and girlfriend Catherine Greig are arraigned June 24, 2011 in Boston, Massachusetts. Bulger is wanted for the alleged murders of 19 people dating back to the mid 90's and Greig is wanted for harboring a criminal. Both were arrested in Santa Monica, California on Wednesday after 16 years on the run. (Photo by Darren McCollester/Getty Images)
BOSTON - JUNE 24: Spectators stand outside the John Joseph Moakley United States Courthouse as James 'Whitey' Bulger and girlfriend Catherine Greig are arraigned June 24, 2011 in Boston, Massachusetts. Bulger is wanted for the alleged murders of 19 people dating back to the mid 90's and Greig is wanted for harboring a criminal. Both were arrested in Santa Monica, California on Wednesday after 16 years on the run. (Photo by Darren McCollester/Getty Images)
Anthony "The Saint" St. Laurent, a convicted mobster, waits to testify before a judge in federal court in Boston, Mass., Tuesday, June 17, 1997. St. Laurent was one of three reputed mobsters ordered to appear in court in the racketeering case of Francis P. "Cadillac Frank" Salemme, who prosecutors claim headed the local underworld. Federal prosecutors recently revealed that Boston underworld figure James J. "Whitey" Bulger, currently a fugitive, is a possible FBI informant. (AP Photo/Gretchen Ertl)
This is a photo of a planned online virtual Wanted Poster, designed by internet provider Terra Lycos of Waltham, Mass., and released Wednesday, Dec. 11, 2002 in Boston, in an effort to aid in the apprehension of reputed Boston mobster James " Whitey" Bulger. Working with federal investigators, Terra Lycos hopes the placing of the posters over their worldwide network will assit in Bulger's capture. (AP Photo/Patricia McDonnell)
FILE - A poster featuring fugitives James "Whitey" Bulger and Catherine Greig is seen at the FBI field office in Boston, in this June 20, 2011 file photo. FBI agents on the trail of Bulger are turning to TV ads aimed at women as they try to bring the fugitive Boston mob boss to justice after 16 years on the run. The 30-second ad is scheduled to start running Tuesday in 14 television markets. The FBI finally caught the 81-year-old Bulger Wednesday June 22, 2011 at a residence in Santa Monica along with his longtime girlfriend Catherine Greig, just days after the government launched the new publicity campaign to locate the fugitive mobster, said Steven Martinez, FBI's assistant director in charge in Los Angeles. (AP Photo/Michael Dwyer, File)
Police and FBI surround the apartment building in Santa Monica, Calif., where fugitive crime boss James "Whitey" Bulger and his longtime companion Catherine Greig were arrested, Wednesday evening, June 22, 2011. The two were arrested without incident, the FBI said. Bulger was the leader of the Winter Hill Gang when he fled in January 1995 after being tipped by a former Boston FBI agent that he was about to be indicted. (AP Photo/David Zentz
The name of "Gasko" is seen on an apartment directory, where fugitive crime boss James "Whitey" Bulger and his longtime companion Catherine Greig lived using the alias, in Santa Monica, Calif., Thursday, June 23, 2011. Bulger spent almost all of his 16 years on the lam in the same Santa Monica apartment complex, paying his rent in cash every month while he and his girlfriend hid from one of the biggest manhunts in U.S. history, the property managers said Thursday. The Boston mob boss was captured Wednesday near Los Angeles after 16 years on the run. (AP Photo/Damian Dovarganes)
An FBI agent holds an evidence bag outside an apartment complex where fugitive crime boss James "Whitey" Bulger and his longtime companion Catherine Greig were arrested in Santa Monica, Calif., Thursday, June 23, 2011. The Boston mob boss was captured near Los Angeles after 16 years on the run that embarrassed the FBI and exposed the bureau's corrupt relationship with its underworld informants. (AP Photo/Jae C. Hong)
Victims' family members, Steve Davis, left, and Tommy Donahue clasp hands as they react outside federal court in Boston Tuesday, June 12, 2012, after Catherine Greig, who spent 16 years on the run with former Boston mobster James "Whitey" Bulger, was sentenced to eight years in prison for helping to hide one of the FBI's Ten Most Wanted Fugitives. (AP Photo/Elise Amendola)
In this courtroom sketch, James "Whitey" Bulger, right, listens to his defensive attorney, J.W. Carney Jr., during closing arguments at U.S. District Court, in Boston, Monday, Aug. 5, 2013. Bulger's lawyers used their closing arguments to go after three gangsters who took the stand against the reputed Boston crime boss, portraying them as pathological liars whose testimony was bought and paid for by prosecutors. (AP Photo/Jane Flavell Collins)
A courtroom sketch depicts James "Whitey" Bulger, center, during a pretrial conference before U.S. District Judge Denise Casper, left rear, in a federal courtroom in Boston Monday, June 3, 2013. Bulger is flanked by his attorneys Henry Brennan, left, and J.W. Carney Jr., standing at right. Jury selection begins Tuesday for Bulger's trial. (AP Photo/Jane Flavell Collins)
This courtroom sketch depicts Stephen "The Rifleman" Flemmi, upper right, on the witness stand as defendant James "Whitey" Bulger listens, seated middle, next to his defense attorney J. W. Carney Jr., seated far right, while prosecutor Fred Wyshak, standing left, questions Flemmi during Bulger's racketeering and murder trial at U.S. District Court in Boston, Friday, July 19, 2013. Flemmi, who was once Bulger's loyal partner, has recounted multiple killings he says Bulger was involved in, either as a triggerman or a driving force. (AP Photo/Jane Flavell Collins)
Media surround Steven Davis, right, brother of Debra Davis, as he speaks outside federal court where a jury found James "Whitey" Bulger guilty on several counts of murder, racketeering and conspiracy Monday, Aug. 12, 2013 in Boston. Jurors could not agree whether Bulger was involved in Debra Davis' killing. (AP Photo/Josh Reynolds)
This is a 1986 FBI handout photo of New England organized crime figure James J. "Whitey" Bulger. Bulger has been a fugitive from the law since January 1995, after being indicted on federal racketeering charges. (AP Photo/FBI)
This is an undated FBI handout photo released Wednesday, Dec. 30, 1998, showing reputed Boston mobster and fugitive James J. "Whitey" Bulger. Bulger, 69, who disappeared in 1995 as law enforcement agencies were about to arrest him, is seen in this photo found by the FBI during an evidence search in Boston, wearing a leather coat and hat. (AP Photo/FBI Handout)
FILE - This file June 23, 2011 booking photo provided by the U.S. Marshals Service shows James "Whitey" Bulger, captured in Santa Monica, Calif., after 16 years on the run. Bulger was convicted in a Boston federal court in August 2013 on a broad indictment that included racketeering charges in a string of murders in the 1970s and '80s, as well as extortion, money-laundering and weapons charges. A federal appeals court in Boston heard arguments Monday, July 27, 2015 on his bid to overturn his racketeering conviction. Bulger was not present for the proceedings. (AP Photo/U.S. Marshals Service, File)
Discover More Like This
BACK TO SLIDE
Brennan also argued that federal prosecutors failed to turn over certain details about an agreement they had with one of the key witnesses against Bulger, hit man John Martorano. Brennan said in addition to getting what he called an "unfathomable" deal from prosecutors for testifying against Bulger, Martorano was promised that he would not have to testify against his own family and friends.
The judges appeared skeptical about that claim, noting that Bulger's lawyers never asked the trial court to make a ruling on whether there was such an agreement.
Judge William J. Kayatta Jr. noted that jurors were told about the plea agreement Martorano had with prosecutors — Martorano served 12 years in prison for killing 20 people — and asked what difference it would have made if they had been told that he also received other benefits.
Bulger, now 85, is serving life in prison. He was not present for the hearing.
The court is expected to take several months to issue a ruling.
After the hearing, former Assistant U.S. Attorney Brian Kelly, one of the prosecutors at his trial, said Bulger could have testified about anything other than his claim of immunity.
"He didn't want to testify because he knew he'd be cross-examined for days ... now he's trying to pretend it was some kind of legal error," Kelly said.
The jury at Bulger's trial convicted him of participating in 11 murders in the 1970s and '80s, but found that prosecutors did not prove he was also involved in seven other killings. The jury made no finding on whether Bulger participating in the murder of Debra Davis in 1981.
Her brother, Steve Davis, listened in court to the arguments and later said he's "almost hoping" the appeals court grants Bulger a new trial so he can get justice for his sister.
"I think all the victims' families didn't get a fair trial," he said.
But Davis also said it would be difficult to sit through another trial for Bulger.
"The only thing I want to hear from him is the closing of his casket," he said.