Prosecutors and James "Whitey" Bulger's attorney sparred in court papers Wednesday about whether the government should be allowed to drop one of two pending federal cases against the former mob boss or whether those cases should be consolidated.
Bulger's attorney, Peter Krupp, said prosecutors are trying to shop for a judge by seeking to dismiss one indictment against Bulger in favor of a later indictment that accuses him of participating in 19 murders. He asked that the two indictments instead be consolidated.
In a response, U.S. Attorney Carmen Ortiz said that Krupp's motion carried no weight since Bulger has yet to be arraigned on either indictment. Ortiz said Krupp's motion is "without legal basis" and should be denied.
Krupp said prosecutors are attempting to manipulate the usual process of randomly assigning judges to cases by seeking to dismiss a 1994 indictment that charged Bulger with extortion and loan-sharking, but not murder.
"The government's apparent forum shopping is contrary to the public interest and undermines public confidence in the judicial process," Krupp wrote in his filing. He also said prosecutors are trying to "game the system."
But Ortiz said it is Krupp who is "forum shopping" for a judge, not federal prosecutors.
"In fact, the only logical explanation for the (defendant's) counter-intuitive strategy of opposing dismissal and requesting that he be prosecuted for additional offenses is that the defendant is engaging in forum shopping," Ortiz wrote.
Ortiz on Tuesday had moved to dismiss the 1994 indictment and focus solely on the 1999 indictment, which includes the murder allegations. If the dismissal is approved, U.S. District Judge Mark Wolf would be removed from the case. The 1999 indictment is assigned to Judge Richard Stearns.
Bulger, the former leader of the notorious Winter Hill Gang, was captured in Santa Monica, Calif., last week after 16 years on the run. He fled Boston just before the first indictment was made public in January 1995.
Krupp suggested that prosecutors are trying to avoid having Wolf preside over the case.
"Such forum shopping is disfavored," Krupp wrote.
Wolf has been a pivotal figure in the Bulger saga. He held a series of hearings in the 1990s that exposed the corrupt relationship between the Boston FBI and Bulger, who was an FBI informant who provided information on the Mafia, his gang's main rivals.
Former FBI Agent John J. Connolly Jr. was convicted of racketeering and obstruction of justice for protecting Bulger and his cohort, Stephen "The Rifleman" Flemmi from prosecution.
Krupp said that after "having encountered difficult questions" from Wolf during the 1990s hearings, the government obtained a new indictment _ the 1999 case _ rather than adding the charges to the 1994 indictment, "so that it might be assigned a different docket and drawn to a different judge."
In court documents filed Tuesday, Ortiz said prosecutors want to dismiss the earlier indictment because they consider the 1999 indictment the stronger case. Bulger faces life in prison if convicted on those charges.
Ortiz also cited the long wait the families of the murder victims have had to endure for authorities to find Bulger, now 81.
"The 19 families of murder victims have been denied justice for many years because the defendant has successfully eluded law enforcement apprehension," Ortiz said in court documents.
On Wednesday, Bulger was brought to the Boston federal courthouse from the Plymouth County Correctional Facility in Plymouth, where he has been held since Friday. The move was apparently so Bulger could meet with his lawyer.
Bulger is expected to be in court Thursday for two hearings: one on his request to get a taxpayer-funded attorney, the other on prosecutors' move to dismiss the earlier indictment.
Associated Press writer Russell Contreras in Boston contributed to this report.