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
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)
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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.