A Carney & Brennan Redux – IV – The Flaw

A Sign Of Spring
A Sign Of Spring

No matter how you slice Whitey’s status vis-à-vis the Government, a couple of certainties exists. There’s no doubt Stevie Flemmi was an FBI informant. He admitted he was an informant. The FBI files have actionable information from him that resulted in significant Mafia arrests. Whitey in his motion wrote: “While Flemmi may have provided information to the federal government, James Bulger did not.”

There’s no doubt Whitey knew Stevie was an informant. He had been his partner since 1975. He and Stevie were always together. They were together when they met with FBI agents many times over the years.

According to Morris and others as set out in my book Don’t Embarrass The Family they traveled to their meetings and dinners together. They even refused to be interviewed separately. What one knew the other knew..

Despite those certainties, we are unable to be positive Whitey was an informant. We know the FBI had a file labeling Whitey as an informant. We also know that the FBI can set up a file making anyone an informant without telling that person it has done so.

Agent Dennis Condon already had done it once to Whitey in 1971. Whitey a member of the Killeen gang was in a Southie dust-up with the Mullen gang. His life was in danger. Condon went to him with the pitch “the FBI can save you.”

Condon, in anticipation of Whitey acting like others, had set up a file on him. He notified FBI headquarters that Whitey was going to be an informant. The relationship never got off the ground. Whitey told him to take a walk. He closed the file in about four months.

Within Whitey’s FBI informant file there is little evidence to show Whitey was an informant. There’s no picture of him. There are no prints. There’s no signed statement indicating his accepting that role. Nothing exists of a formal nature indicating Whitey’s awareness of this file.

Back in the critical time period of 1981 an FBI Assistant Special Agent in Charge (ASAC) who was second in command of the Boston office wanted to meet with Whitey. This ASAC said he had doubts about whether Whitey was giving any information of value. He asked Whitey why so little was coming from him. He stated Whitey told him he was not an informant.

The ASAC after hearing this and seeing the paucity of information Whitey provided sought to close him out. But he couldn’t. Whitey was protected by some people above this ASAC. He had powerful friends in the DOJ.

Carney & Brennan (C&B) make much of Whitey not being an informant. Their argument is the Government is saying he’s an informant so as to hide the deal he had with DOJ. Apparently they worry the Government will rebut their suggestion of an immunity deal by saying Whitey was only an informant like Flemmi whose immunity claim has already been thrown out by the courts.

C&B don’t want Whitey to be just another informant. Informants are a dime a dozen. There has never been in the history of the DOJ a situation where an informant was promised immunity for any crime he may commit.

C&B put themselves in a position to agree with that. They return with the statement Whitey was so much more than an informant. By labeling him an informant the Government is diminishing his value and covering up. But as I see it there’s a great flaw in C&B’s strategy.

Maybe Whitey never knew he was being ticketed as an informant. Maybe FBI Agent John Connolly set up that file without Whitey’s knowledge. Maybe all the relevant information in Whitey’s FBI file came from Steve Flemmi with only incidental matters, like complaints that the Norfolk DA had a vendetta against him, coming from Whitey. Even if all that is true, the time line destroys the C&B argument.

There is no conceivable way a legitimate argument can be made that when Whitey was labeled as an informant the purpose was to cover up the Government’s immunity deal with him. O’Sullivan made the alleged deal with Whitey in 1978 or 1979. Whitey’s informant file had been open in 1975. Agent Connolly labeled Whitey an informant at least three years before O’Sullivan met with Whitey as best I can tell.

Whitey may not have been an informant but the Government is not saying he’s an informant “in an attempt to silence James Bulger to conceal the existence of his immunity agreement with DOJ,” as C&B would have it. The Government based on the existence of the FBI Whitey informant file has always maintained he has been an informant even though it may have disputed the value of his information.

20 thoughts on “A Carney & Brennan Redux – IV – The Flaw

  1. I agree and you touch upon one dynamic that hasn’t been discussed; the Italian/Irish rivalry.

    Most of the cops and prosecutors involved in these FBI TEI fiasco’s are ; Whitey, O’Sullivan, Connolly, Condon etc. are Irish and the defendants; Martorano, Flemmi, Salemme, Tamaleo, Salvati etc are Italian. I don’t think its happenstance.

    A friend was under indictment once upon a time and his attorney, who was of Irish descent, mentioned everyone involved in his case was Irish except of course the defendant who was Italian.

    I think the long running ethnic feud has a lot to do with who gets charged with what. As you say prosecutors have unlimited discretion on charging or not.

    1. Notaboyo:

      One conclusion you could draw is that the Irish are good guys and the Italians are the bad guys. Just kidding.

      I’m not sure I can go along with you all the way on this but it is a good point. The FBI in Boston did have a lot of Irish but it also had its share of Italians (Montanari, the two Gianturco brothers) J. Edgar Hoover liked the Irish Catholic University graduates as FBI agents. Also remember if the FBI targeted the Mafia they weren’t going to find many Irish guys in its ranks.

      There’s a book I read once called “The Dorchester Boy.” It was written by a Jew from the Blue Hill Avenue area which was predominantly Jewish at the time. He tells of his family making trips to Nantucket when he was a kid and how he developed a friendship with an Irish kid and an Italian kid. He remarked on how it surprised him that they were both Catholic but their views on life were totally different. The Irish kid was more straight laced and the Italian kid was a lot of fun.

      I think there is a difference in the ethnic cultures. I love to go to Italy because of the people there seem more laid back and friendly so unlike the Irish. It’s a product of the weather and also of the history in relation to the Catholic church. The Irish were intimidated by their priests where the Italians could take them or leave them. I’ve always thought the Italians took the laws as advisories where the Irish figured they were rules.

      In the Boston area the Irish dominated the police forces probably because they could speak English when they came here. The Italians did not. So they probably could not compete with them for the jobs. People are comfortable with their own so would tend to lean that way. I recall this big red headed Irish cop who used to kick us mostly Irish kids off the corner. I remember one of my Irish associates saying the reason he did it was he didn’t like Irish kids.

      It’s hard to generalize on the issue. Now I don’t think there’s the disparity that there was in the past. Ciao!

  2. Whitey certainly was an informant no matter how you define the word. He provided information against others to the government for his benefit aka A Rat.

    Whitey won’t admit it becaus it goes against his legend as a stand up guy. One piece of information he gave up was the identity of the Depositors Trust bandits in Medford in the 1980’s he then killed Bucky Barrett and stole his end of the robbery.

    Saying Flemmi needed Bulger as the brains of the group is absurd it just goes along with the Whitey myth that so many want to believe.

    Whitey was an ex-con, convicted rapist with no education who was thrown out of the military.

    Flemmi was a Korean war veteran and a paratrooper who got the moniker “Rifleman” for his military service not Mafioso connections.

    Who sounds smarter?

    Flemmi and Whitey had a good thing going for a long time. Ratting out there competition while currying favor with the government and the Mafia. All the while making millions but Whitey needed Flemmi and Martorano far more then they needed him. Flemmi had the connections and the bloodline. Whitey had a franchise to run Southie and he paid the North End every month. He did the work they got the profit for just being there in name.

    If Whitey or Stevie were smart they would have retired in the 80’s before Wyshak rode into the USAO and screwed everything up.

    1. Notoboyo:
      That’s what I’ve been saying all along about Whitey not being able to shake the moniker “rat”. But Whitey’s got himself jammed in as you’ll see when I write about it in a day or two. You’re absolutely right that Flemmi had it heads and shoulders over Whitey in the criminality department and also probably the smarts. Anyone who met with them described Whitey as the talkative one while Flemmi kept quite not telling anyone what he was thinking. That alone tells you who is smarter.
      A simple fact shows Whitey needed Flemmi. Whitey joined Winter Hill to get protection from the Mullens in Southie. He knew they were going to get him some day and the peace would only last a short time. When Stevie came back Whitey got the muscle he needed that had been missing since Billy O’Sullivan was murdered. Once he had Flemmi he could then go back and wipe out the Mullens who he did not trust. Whitey needed Flemmi not only for the muscle but also for the peace factor. I’m not sure he paid the North End by cash but whatever arrangement he had Flemmi was the guy who could make the deal.
      You have your finger on the pulse of things. You got to factor in the Italian/Irish distrust of each other. I saw it clearly when I was a defense lawyer. The Italian gangsters never minded paying Italian lawyers but they hated to give any money to Irish lawyers. I always found it odd they had those problems because outside the gangster world the Irish and Italians always got along nicely.

  3. “The decision to prosecute may be
    reviewable if it violates the constitutional rights of the
    accused. A decision not to prosecute, on the other hand, such as
    pursuant to an immunity agreement, may not be overturned by a
    court because this decision belongs solely to the Executive
    Branch. United States v. Winter, 663 F.2d 1120, 1133 (1st Cir.
    1981), abrogated on other grounds by Salinas v. United States,
    522 U.S. 52 (1997).”

    In its Supplemental Memorandum, C&B wrote the above. Is this not one of the main issues that is facing the new judge? If the immunity defense is a matter for the jury and not a ‘mere employee of the judicial branch’, then C&B by law would not have to disclose its defense until the govt puts its case to rest. What is your take on this issue of law?

    1. Jean:
      You are right. C&B has slipped from claiming an immunity defense which seems to run into all types of problems with language like “”A license to kill is even further beyond the pale and one unknown even in the earliest formulations of the common law” which Stearns wrote in his opinion and also the argument that the court’s involvement would violated the separation of powers which Stearns interpreted as “a challenge to the authority of the court to review the legality of a grant of immunity extended by the Executive Branch.” In other word the chances of having the claim of immunity upheld seems extremely remote so now C&B are saying the promise O’Sullivan made is that Whitey would not be prosecuted.
      It is in one sense a totally new issue. We are no longer talking about immunity. We are speaking to the right of a prosecutor to decide what cases he will prosecute. As a prosecutor I could decide not to prosecute a case and then later learning new facts change my mind. That’s what in a sense is happening here. Assuming O’Sullivan said he would not prosecute the new prosecutor could change her mind because she learned that murders were involved which were not contemplated in the original agreement and then go forward. Carney would try to rebut that with the argument that Whitey committed his crimes relying on the original agreement and therefore the prosecutor could not change her mind.
      If it’s a matter of factual dispute, which this seems to be then that question would be up to a jury. If it’s a matter of whether such an agreement could be made, in other words did O’Sullivan have the authority to make that agreement, that may be up to the judge. If Whitey alleged O’Sullivan promised him he would be the next FBI director or junior US Senator from Massachusetts in exchange for the deal then no judge would consider letting a jury consider that since it would have been clearly beyond O’Sullivan’s authority.
      Remember Judge Casper is in the cat-bird-seat. No matter how she rules she will never be reversed. No court is ever going to give Whitey a second bite of the apple. Since it is in the realm of possibility O’Sullivan could have made that promise unlike the other matters, for her to properly decide whether the matter can go to a jury for its determination, she must find out what Whitey alleged he was suppose to do to get that deal.
      That’s pretty much what we’re all waiting to find out and I’ve got a sense Whitey hasn’t decide the answer to that yet.

  4. Does the ‘opening’ of Whiteys informant file in 1975 really negate the argument of misdirecting the true nature of the DOJ relationship by calling him an informant? He was also opened in ’72 by the FBI. And closed. You, I and Ernie Boch Jr III could be FBI informants for all we know. I’ve come to believe that one shred of truth is that Whiteys information wasn’t that good, probably because it was largely manufactured (based on Flemmi’s info). Whitey was obviously good for flemmi, adding a brain for the pair to use. By the time the O’Sullivan meeting allegedly occurred, whitey had a body of work to show just how effective (and valuable to O’Sullivan) he is by keeping Flemmi in play. I think that’s why O’Sullivan wanted to meet Whitey in the first place, he was probably impressed with the FBI’s Whitey tales at that point. Would O’Sullivan make a deal if he didn’t know exactly what he would be getting from whitey? The FBI file could just be a convenience which proved to be opportunistic once the DOJ deal was in place. Despite the 700 pages attributed to bulgers informant file, I think the authenticity of this file is highly questionable. Jean is right. A category exists for whatever Bulger was.

    1. Kid:
      You are right. I agree with what most of you said. I’m not sure O’Sullivan met with Whitey or that he ever made a deal with him. But as far as the FBI file is concerned you are on the mark.
      For all you know the FBI may have a file on you labeled “KidThurdsay Top Echelon Informant.” It may be full of information you never provided it. It might also show you’ve been paid a couple of grand a week. I hope the IRS doesn’t find out.
      I agree Whitey’s never seemed to give much information. The real informant was Flemmi. Whitey was along because it was easier to put the information from Flemmi in his file because Flemmi was pretty much a wild man and if he got caught machine gunning someone the FBI didn’t want an open file on him in the unlikely chance they were asked to disclose it. So Flemmi’s information was washed through Whitey’s file. Whitey at least had a social relationship with Connolly and to look like he was doing his job when he was hanging around shooting the bull with Whitey, Connolly would file reports of the bull session.

  5. Assuming for argument sake that c&b are correct, what other known categories of employment could thei client have had with usdoj? My father was employed by the us government for over 30 years, and my experience is that there were categories for everything…even covert. Even sealed records exist.

    1. Jean:
      Your guess is as good as mine. Maybe he promised O’Sullivan he wouldn’t murder more than one person a year.I’m waiting to find out. But it must have been something very important.

  6. If Whitey didn’t think he was an informant, what did he think he was giving the feds in exchange for the unprecedented immunity?

    1. Mr. Smithee:
      That’s what we’re dying to find out. So far his lawyer won’t tell us. I think they’re still trying to come up with something good.

      1. I’m confused. I got the impression from this piece that you yourself were pretty skeptical the Whitey was, in fact, not an informant. Maybe you were just making the case for that position and I didn’t get it?

        The logical conflict of Whitey simultaneously trying to argue he was not an informant AND that he had carte blanche immunity from the feds, is probably why that particular jailhouse conversation got leaked in the first place. Preemptive shot against the off chance his defense actually had something to support the immunity claim.

        1. ——–
          Mr Smithee:
          Good question. If it seems I’m going back and forth on the issue of Whitey being an informant you may be correct. There several things that seem to clash up against each other here. One is the question of what makes an informant.
          I tend to think Whitey did not know he had a file kept on him at the FBI office. Neither did Flemmi. So when Whitey says he was not an informant, does that mean he did not know that there was an informant file set up with his name on it. If so, he’s probably corruect. There is no doubt Whitey gave Connolly information over time on what was going on in the gangster world. Whitey may have been considering this part of the general intercourse he had with Connolly while Connolly figured it was information for him to use in his capacity as an FBI agent.
          Whitey said he never gave information that resulted in a person getting arrested; but in his relationship with Flemmi he had to have known that Flemmi was giving that information against the Mafia people. Whitey often gave Connolly information that shifted the responsibility for a crime away from himself. In his mind the giving of false information may not make him an informant, while Connolly believed that it did.
          Whitey’s problem is he’s trying to save face. In a day or so I’ll post about the dilemma I believe he is caught in.
          Right now things seem in a flux. I’m really at a loss as to why the prosecutors don’t just hammer away at the idea that nothing can be decided about his claim of immunity until Whitey discloses the terms of the deal. Right now it seems his lawyers are changing its terms as each day passes.

    2. Maybe he meant he wasn’t one of those life long paid informants who makes lots of money by giving information? If I gave cops information voluntarily and wasn’t paid for it I wouldn’t consider myself an informant either.

      I shouldn’t be replying to your post since I don’t know much about this. I’m sure Whitey knows more about the law than I do. I always thought criminal informants were paid cash as well as given immunity.

      I’ve read they are paid in several different ways but I don’t know if it’s true.

      1. Correction, I’ve been told by law enforcement they can offer and make other ‘deals” besides money but I’m not sure if it’s true. Maybe Matt knows for sure if anything goes and if it’s legal?

        1. Question:
          There are few restrictions on what a prosecutor can do with respect to an informant. We see in Whitey’s case the issue is over whether a prosecutor can give an informant immunity. The defense team feels it is losing ground on that claim so it has switched it to saying the prosecutor promised Whitey he would not be prosecuted for his criminal actions. A prosecutor has the absolute right to decide whether he will prosecute a person or not. With that right, you can see that a prosecutor can do pretty much anything she wants.

      2. Question:
        Whitey had a many year relationship with the FBI. If you give police information on one or two times it usually means you are a witness unless it is against someone you believed was involved in criminal activity and they knew nothing about.
        Some informants do it for cash, most do it to get themselves out of a difficult situation. Most get caught committing a crime and try to get themselves off by squealing on their friends. Others do it to get revenge against people who are their competitors, others are cop groupies who like to hang around with cops. Even those in the latter group are sometimes given some money. There’s really no standard to it.
        It appears Whitey never received money for the information he says he never gave

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