A Piece of Gold Hidden In a Field of Blarney

The Last Time I Saw Paris The more I think about it the first time Carney and Brennan (C&B) came up with the idea to inveigle the prosecution team of Wyshak and Kelly (W&K) into a trap was sometime last summer within months of the scheduled March 2013 trial date.  They had some good stuff going for them so that they could attack the prosecution witnesses but as good defense counsel know sometimes that isn’t enough. Juries are interested in everything going on in the courtroom. Everything affects how it will react and its ultimate decision.

One thing a jury will closely consider are the lawyers trying the case. You may have noted that some lawyers are particularly successful and others not so. Much of this depends on how the jury relates to counsel. If you can get the jury to think the other lawyer is somewhat of a sleazebag then you are tilting the evidence in your favor. No juror wants to be on the side of someone who they think is slimy.

A jury will forgive a prosecutor for having sordid witnesses if it feels there is nothing else the prosecutor could do to prove the case. I think it was the prosecutor Neuman Flanagan who I first heard start off by telling the jurors that when a crime is committed in the jungle you have to go into the jungle to get your witnesses. Of course that was mild by Neuman’s standards. He did most of his good trial work during the time when the final arguments were not recorded so he could wander far afield in suggesting analogies between the defendant and other criminals.

C&B knew they had to come up with something that would make the jurors think the prosecutors were not all they were cracked up to be. The only thing they figured was somehow to make it look like the prosecutors were hiding things. That was their approach for a while with their complaints of failing to get all the discovery they were promised. They knew that was all right for delay but once the jury was empanelled that issue would fade.

It was in the middle to latter part of June last year that they read an article I had written about and realized they had found what they were looking for. This was an article in The Daily Beast on June 18, 2012 by T.J. English. He had just had a conversation with FBI Agent John Connolly who called him from his prison cell in Chipley, Florida.

T. J. English wrote: “As early as 1977, agent Connolly informed O’Sullivan that he had “turned” someone who could help them make major cases against the Mafia. When O’Sullivan heard it was Bulger, he wanted to meet him. Remembers Connolly, “I asked him, ‘Are you sure? You don’t have to.’” It was highly unusual for an assistant U.S. Attorney to meet face to face with a top informant while an investigation was still ongoing. O’Sullivan insisted. Connolly set up a meeting between the city’s top mobster and its top organized crime prosecutor in a hotel room on a rainy afternoon around Christmas. “I was there,” says Connolly. “Jimmy met Jerry. As I remember it, they were both quite impressed with one another.””

Of course we know that statement is nonsense. One of John Connolly’s problems is he talks too much probably because he’s been cooped up so long he likes to hear another voice outside of that of a prison guard but its beyond that, he has the Irish propensity for blarney. Blarney is the art of telling something over and over again that is close to but not really the truth but then turning around and believing what you’ve been telling as being the gospel truth. It’s why the field Irish believe in Leprechauns.

C&B knew it was foolishness. Everyone knew Whitey had no information on the Mafia. Even the authors who say he was recruited to give information on the Mafia will later admit he had no connection to the Mafia and that he never gave any information on it yet never go back to try to reconcile their statements.  Howie Carr to give him a bit of credit recognized that would push his book into the realm of sheer fantasy if he asserted that was the reason Connolly recruited Whitey. He came up with the idea the FBI agents could see into the future and saw Billy Bulger as president of the Massachusetts Senate and figured he’d get them jobs when they retired so they brought Whitey into the fold.

C&B however recognized that the statement contained the gem they were looking for. They knew Stevie Flemmi said the FBI gave him immunity. Judge Wolf believed him and was going to give him a hearing until the Court of Appeals shot him down saying an FBI can’t give immunity, only the U.S. Attorney. If perchance, they thought, at this meeting Connolly was talking about O’Sullivan gave Whitey immunity that would fit the court guidelines. They rushed off to talk to Whitey to see if that were the case. But what was the best part of Connolly’s statement was that the US attorney he mentioned had died.

If Whitey could remember the meeting and what was said, he might well be on his way to an acquittal. And better yet, if the prosecutor kept that evidence from the jury it would diminish him in its eyes since it would think he was hiding something.

7 thoughts on “A Piece of Gold Hidden In a Field of Blarney

  1. Question (and please know this is written with all due respect to the McIntyre family)

    In 2001, a civil case for wrongful death was filed against the FBI and all the players involved in Mr. Bulger’s trial seeking $50m in damages. An article by Denise Lavoie, Associated Press (03/08/01) titled “Family of alleged mob victim files suit against FBI mobsters” which raised some questions for me.

    From the article we see that US Attorney Donald K. Stern punted that football up and over to the DOJ’s “Civil” Division because it would be “awkward since his office was investigating and prosecuting some of the FBI agents.”

    The article also went on to say, that the US DOJ Civil Division “can claim a discretionary function exception which shields the government if its agent was doing something that he was given discretion by law to do, even if he abuses that discretion?”

    My questions are:
    1.)Did the DOJ “Civil” Division contemplate the “discretionary function” and/or use it – are those records from the Civil angle discoverable/usable in the current criminal matter?
    2.)If they did, isn’t that prima facie evidence that there was some sort of deal/authorization for those horrendous acts?
    3.)Where is that whole civil matter? Did the McIntyre’s win – was the judgment furnished?
    4.)When Judge Casper ruled “Whitey can’t raise immunity” does it somehow tie back into the outcome or whereabouts of the civil case thus insulating the DOJ from prior assertions it may have raised in civil court matters?
    5.)Did the DOJ share all “civil case related” documents with Mr. Carney and Mr. Brennan?
    6.)Ultimately, if the DOJ ever claimed or even considered claiming “discretionary function” than that puts them in the awkward position of having to say on one hand – yes, we or the law gave an agent discretion to go kill so we don’t have to pay you a dime, but on the other hand, and for purposes of the criminal court, no we did not give the agent discretion; he was a rogue agent and acted on his own? So DOJ, which is it, discretionary function or no discretionary function?

    In other words, are civil cases and criminal cases treated so separately that never the twain shall meet?

    1. Alex:
      I didn’t follow the McIntyre case so I can’t answer some of your questions.
      You ask about “deal/authorization for these horrible acts.” Those cases were against Connolly and the federal government, the latter having the deep pockets. McIntyre was allegedly murdered by Weeks & Flemmi (two government’s witnesses), and Whitey; Pat Nee (may be a government informant) also involved in driving him to the set up and burying him. The government was implicated because Connolly allegedly told Whitey that McIntyre was talking. (It is not known if McIntyre ever met Whitey; the person McIntyre could jam in was Nee who was Weeks’s buddy)
      The government has a programs, still has it today, to protect top echelon informants. One way to protect them is to tell them who is giving information on them. When the fact finder found that the information given to Whitey led to McIntyre’s death, it was finding the government culpable for his death.
      I believe McIntyre won his case although I can’t put my finger on the decision now. I don’t think Casper’s decision on the immunity is effected by any of the civil action. I believe DOJ gave all the civil documents it had to C&B; although some of those documents were in the hands of civil lawyers and C&B had to ask the court to tell those civil lawyers to cooperate.
      The bottom line is Connolly was doing what he was supposed to do as obnoxious as it might seem to those in the Ivy Towers or other effete environs separated from the dingy environment of the street. The separation between the people of the mean streets and those who judge them in the courts is no less than that which during the antebellum separated the field slaves from the daughters of the plantation owners.

  2. Matt,

    I’m not convinced the meeting(s) between Bulger and O’Sullivan were a product of John Connolly’s imagination. Rather Connolly’s statement is entirely consistent with common sense, history, and the entire defense.

    Bulger’s interest during O’Sullivan’s tenure was to not get prosecuted, he had done hard time and was not keen to go back. It’s also clear Bulger was a true strategist. He trusted no one. He especially did not trust law enforcement. As you noted previously, Bulger knew that having a nickname was a bad thing. He knew that having a hangout or clubhouse was a bad thing. He knew that the first element of a RICO prosecution is Organization, therefore it was bad to be associated with a named group. Note that he was originally indicted by Wyshak as a member of La Cosa Nostra, then reindicted as “The Bulger Group”, then reindicted as the “Winter Hill Gang”. (The “Bulger Group” was a name Wyshak invented strictly for marketing purposes. That was when it became clear Whitey was going to be made Public Enemy #1.) Bulger didn’t drink alcohol, smoke, take drugs, or even gamble. He was disciplined and left little to chance. Bulger’s modus operandi was also to always have insurance and a back-up plan behind that. “The idea behind committing a crime was to get away with it.” There’s no way Bulger would rely on a meager assurance of non-prosecution from SAC John Morris. Bulger would have gone higher in the DOJ than a SAC. Bulger owned Morris, but he could also see how weak and mealy Morris was. I believe that Bulger not only met with O’Sullivan, but that O’Sullivan made a deal that satisfied Bulger’s hard bargaining standards. His defense is made of more than an inadmissible of an inmate in FL.

    I also believe independent evidence exists beyond Connolly’s statement to support Bulger’s contention he met with O’Sullivan and made a deal. Feds do nothing without filing a report. They file so many reports, even the absence of a report can be probative. There will be some record or gap in the DOJ records showing Bulger met with O’Sullivan. However, those will likely be “found” well after the trial. It is also likely that Bulger memorialized his meeting and dealing with O’Sullivan….insurance. Bulger called the mother of his child while he was on the run in about 1995. She said Bulger told her that he was going to be out of town for a while but he had insurance, “and it was gold plated”. That statement predates Conolly’s statement by over 15 years, and it’s not at all likely Bulger would refer to the word of the weasel John Morris as “gold plated”.

    I don’t know what Bulger’s deal was, but I’m pretty confident it wasn’t made with Morris. I remind you again of the words of Justice Souter with respect to Bulger’s deal….’the evidence is indisputable that the FBI was not dealing with Bulger at arms length during the period O’Sullivan was in charge’. Souter further wrote, ‘the relationship with Bulger went beyond the FBI for it certainly extended into the DOJ and to O’Sullivan.’
    Souter reached those conclusions from merely reviewing the publicly available record. If that’s the conclusion of a great mind like Souter’s pondering the public record, it is just not credible that there is nothing in the DOJ’s records along those lines. I’ll take that bet.

    Why would O’Sullivan meet with Bulger at all? Perhaps for the same reason that Wyshak attributes to Connolly for getting close to Bulger. Maybe O’Sullivan felt he could deal with someone from his own ethnic background. Maybe O’Sullivan chose to bless an Irishman over the numerous Italians in organized crime. Maybe that offensive title, “Black Mass” really refers to an unholy alliance between Bulger and O’Sullivan, not Connolly.
    What did O’Sullivan get in return for the deal? Maybe the safety of federal law enforcement officers. Angiulo would never order his own guys to hit a fed, he’d hire someone unaffiliated like Martorano or Flemmi…something Bulger would be able to stop. Maybe as you noted, Bulger set up the garage in the North End at O’Sullivan’s request….Bulger would never do anything so stupid without an excellent reason. Maybe Bulger cobbled together guys to make it seem like he had an Organization at o’Sullivan’s request….Bulger would never do anything so stupid as to have a named organization like Winter Hill…… unless maybe O’Sullivan promised him something.

    There’s plenty of conjecture here, but things have to fit with common sense and history, too. I see plenty of evidence (and non-evidence) of a deal with O’Sullivan that supports the defense. Time will tell.

    1. Patty:

      We are going to have to disagree on this one. I admit I suggested possible reasons O’Sullivan may have made a deal with Whitey but never thought they were probable. Gangsters don’t hurt cops (unless they become one of them) so no prosecutor would feel it necessary to deal with Whitey to prevent something that never would be envisioned.

      I agree with everything you say about Bulger but he wasn’t infallible. He trusted Weeks who as we know that Weeks could only stand up for less than two weeks behind the bars. he trusted Flemmi who likewise turned on him being able to kill people but shaking at the thought of his own demise. Two big mistakes.

      Bulger was impressed with Morris. He called him Machiavellian at least twice. He was fooled by his bluster not knowing Morris was really a weak guy inside. We’ll get a chance to see him cry again when he testifies against Whitey.

      Bulger learned from Flemmi. Flemmi led a charmed life thanks to the FBI. Murders dismissed, blowing up a lawyer dismissed, etc. For a couple of years after being locked up he still expected the FBI to come to his rescue. Bulger saw how Flemmi made out with the FBI so he figured they could do anything for him. They proved that by pulling him out of the Race Fix case. He didn’t need O’Sullivan with guys with that power.

      I don’t buy there was ever a meeting nor do I think a missing report exists. The simple fact is O’Sullivan had no reason to meet Whitey. Bulger’s gold plated insurance in his mind was Connolly who tuned out to be made of tin.

      Souter’s right, the FBI did not deal with Bulger at arms length, he was a member of its team as being on the gold plated Top Echelon Informant program. It did extend to O’Sullivan who cut him out of the race fix case.The DOJ can’t prosecute a person without evidence and when the FBI feels it is is job to protect its Top Echelon informants and hide evidence of their criminality then it’s difficult for the DOJ to do much against any of them.

      O’Sullivan denied he met with Bulger but he did admit he met with other informants; not to make secret deals but to determine their veracity. I agree I could be wrong but right now I’m sticking to my guns that no such meeting ever happened. But I do hope Whitey testifies and that he testifies about a meeting because I have a huge desire to know what he would say about it.

  3. Matt – Brilliant……..
    Nice “sherlock holmes” investigation you had here…..i recall that article as well, but why would connolly seem to want to “help” whitey in a sense when whitey certainly did not help Connolly when push came to shove? almost seems like he was “throwing him a bone” with a possible defense strategy as u figured out is the case; or very well could be the case…
    you think this was by design by the disgraced g man?

  4. In 1977 WB was not the city’s top mobster. An invention by English. 2. Noted Cong. Keating on the news yesterday saying that the FBI would give testimony, before Congress investigating the Marathon bombings, only in private. So we won’t hear the Boston SAC tell us when the knew the men with the black back packs were the bombers. When they decided to have their fake press conference looking for the public’s help. We won’t hear who ordered that deception. Was it the WH? DOJ? or Meuller? The cover up continues. It’s just like Benghazi. 3. The feds totally dropped the ball in this matter. Customs and Immigration should have revoked the refugee status of the Tsarnaevs as soon as they voluntarily returned to Russia. That act demonstrates that their asylum claim was fraudulent. The FBi which didn’t share the Russian tip about Tamerlan with the local police completely failed in inadequate investigation of the tip. The public has a right to know the names of all government officials who had access to the tip and what steps they took. Will the Congress just fold and avert it’s eyes?

    1. N:
      Whitey was never the city’s top mobster, if anyone was it was Flemmi.

      Of course the FBI will only give testimony in private. it has been doing it for years. It can do it this way because Congress is afraid of it. When Billy Bulger asked to give testimony in private the media was outraged as were the Congressmen; when we have four dead people because of FBI inaction then we are not entitled to know anything. your buddy Obama has already said they did well and the Republican chairmen of the committees that will investigate them are former DOJ employees or FBI agents. J. Edgar never dreamed thing could be so good.

      I’m doing a little series on this next week and talk about the matters you bring up. I don’t know why you’re bothered, I turned on TV the other day to check the weather and scanned all three cable news stations who had suspended normal programming to cover the verdict in the Jodi Aris case. I had no idea what they were talking about but that’s what is important today in America. Amrican have become like Baldy Sheehan who was watching to make sure none of the kids were stealing penny candy while the other kids were looting his cash register.

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