03/15/2013 02:36 pm ET Updated May 15, 2013

Shopping for Judges in the Bulger Trial

On Thursday, a federal appeals court ruled that Judge Richard Stearns, the presiding federal judge in the prosecution of James "Whitey" Bulger in Boston, must step aside and be replaced based on the fact that Judge Stearns had previously served as an Assistant United States Attorney in Massachusetts. "A reasonable person," the court stated, "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." This wrong-headed decision establishes a bizarre and unsustainable precedent that should make U.S. Attorneys and federal judges alike concerned about future claims of immunity.

As is well-known by now, the Bulger case involves a sociopathic South Boston gangster whose reign of terror in Massachusetts involved the alleged murder of at least 19 people and who was aided and abetted by a rogue FBI agent. Bereft of a reasonable defense and intent on delaying his federal trial in an awkward attempt to avoid later prosecutions in Florida and Oklahoma, Bulger's attorney, J.W. Carney has floated phony allegations, including the outlandish claim that his homicidal maniac of a client had a license to kill from a federal prosecutor who, conveniently, is long deceased.

Fearful of any criticism that they might be perceived as having protected a judicial colleague by -- gasp! -- applying the law, the appeals court speculated that Judge Stearns would be unable to remain impartial in the Bulger trial based on even more speculation that he would be swayed by the fact that he was at one time himself an Assistant United States Attorney in Boston -- the very office from which Carney's absurd claim is based. Never mind that there were more than a hundred other prosecutors in that office, too. Or that a large number of federal judges were once federal prosecutors. No, the appeals court, which included retired Supreme Court Justice David Souter, decided to unanimously impugn the integrity of Judge Stearns, a Clinton appointee who is universally respected as a fair and honorable judge.

In addition to desperate and continuous attempts to delay the Bulger trial, Carney's motive was clearly judge shopping. Witness his comments to the press after the ruling: "There is no other judge that we object to," Carney said. Really? Is he not aware of the fact that of the remaining 12 federal judges who might be assigned the trial, seven are former employees of the United States Attorney's Office in Massachusetts?

All of this sets a bad precedent for criminal prosecutions. In the future, should a defendant be tried before a federal judge who was once a federal prosecutor, all he would have to do is make a claim that his crimes were committed with the approval of some federal prosecutor in order to have an argument for the removal of his judge. And the odds that appeals based on this decision will be filed are strong.

It's a sad day for the criminal justice system in the country when a respected and esteemed judge like Richard Stearns can be removed from a trial based on desperate and groundless claims from a renowned madman. That a federal appeals court would facilitate such obvious efforts is troubling.