Carney and Brennan Let Their Golden Chances Slip Right By

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When Carney and Brennan (C&B) asked Whitey about Connolly’s statement that he and O’Sullivan had met, Whitey didn’t have to think hard about the meeting. It’s not everyday that a rising gangster gets to meet the head of the Federal Organized Crime Strike Force in a secret meeting place and then deal with him by himself whereby he enters into a deal that gives him the right to murder people. Never mind that it didn’t happen every day, it’s really not once in a year occasion. Even that isn’t true, this might have been the only time in the history of American jurisprudence that it happened.

It’s no wonder Whitey remembered it. What was surprising is he hadn’t mentioned it before. Even more surprising was when he was indicted in 1995 he ran away. C&B said the agreement lasted at least until 1989 when Jeremiah O’Sullivan left the Department of Justice and all the charges against Whitey occurred before that time. Here it was a mere five or so years later when O’Sullivan was still held in high esteem having a prominent position in a big Boston law firm. If he had this iron clad agreement with O’Sullivan why didn’t he run in town rather than out of town and say, “Jerry! I’ve been indicted! What about our agreement?”

I suppose one could argue it’d take time for O’Sullivan to straighten things out so perhaps it was best to get out of town for a while. I wonder if Whitey kept a log of all the calls he made reminding O’Sullivan of the agreement or copies of the letters he wrote to him asking him “what’s up, we had an agreement I could murder people. Have you got rid of them indictments yet?”

We know Whitey did call corrupt FBI agent John Morris who planted a bomb on the gas tank of Eddie Miani. After being caught in lots of lies to FBI agents and leaking secret FBI information to the Boston Globe, Morris was transferred out of Boston and then was promoted to an assistant special agent in charge out in California. He then went back in an even higher position to Quantico, Virginia, my old base, teaching (knowing the FBI it was probably ethics) when Whitey using the clever pseudonym “Mr. White” called him and told him to straighten the mess out saying, “If I go to jail you’ll go with me.” Why would he think he was going to jail if O’Sullivan said he could do whatever he wanted?

I don’t know if C&B asked him any of these questions or if they asked for copies of the correspondence he had with O’Sullivan. Now I suppose I will never know what really happened because Judge Casper at the insistence of the prosecutors said he can’t tell us. That’s enough to drive one to drink. Here it is a historical happening, only once in recorded history has such an event occurred, and we’re being told we can’t be privy to it.

All of the above would have been available to the prosecutors to use to make Whitey look like an evil criminal. It would have been easy to do this. But the prosecutors left it on the table. Whitey could have been destroyed by asking him whether he would have murdered someone had he not believed he had immunity or at what time during a murder did he realize he could commit the act with impunity?

How hard would it have been to establish what type of person O’Sullivan was? Why didn’t the prosecutors come to his defense and show the extent of his work in going after organized crime and show some of the cases that he had prosecuted. Why didn’t they line up other prosecutors who knew O’Sullivan and ask them if they ever went off by themselves to meet with a top hoodlum; or do they think a person with O’Sullivan’s background and skill would have put himself into that position; and have they ever given anyone open ended immunity (or agreements not to prosecute) from past and future crimes.

Why didn’t they show that O’Sullivan hardly knew Connolly since Connolly dealt with informants and O’Sullivan dealt mainly with case agents? I haven’t seen O’Sullivan’s diaries but I’d be willing to bet there are few entries in there talking about meetings with Connolly.

Aside from that we have O’Sullivan’s testimony to the Congressional committee. He testified he did not know Whitey was an informant until 1979 when Connolly and Morris asked him to give him a pass on the Race Fixing case. O’Sullivan testified he was surprised to learn Whitey and Flemmi were informants.

Even more basic, why would O’Sullivan meet with Whitey. Did he have some type fetish that made him want to meet gangsters? If so, how come others aren’t coming in to tell about secret meetings. If not, what on earth could he gain from such a meeting? Why would he have Connolly there as a witness to the meeting but not to the agreement? He testified he didn’t trust Connolly and tried to get him kicked out of a coordination job.

The whole idea Whitey would come in and tell this outlandish story was a gift wrapped home run for the prosecution team which managed to turn it into a strike out. Right now the case is the prosecutors to lose, if they do it’ll be simply because they have failed to look at the big picture which C&B are well aware of and are defending from that point of view.

12 thoughts on “Carney and Brennan Let Their Golden Chances Slip Right By

  1. Matt,

    Your points and questions are all good. I respectfully disagree with a few points.

    You wrote: “C&B said the agreement lasted at least until 1989 when Jeremiah O’Sullivan left the Department of Justice and all the charges against Whitey occurred before that time.”

    I think the pretextual 1995 indictment related to crimes alleged AFTER 1989.

    2. You wrote: “What was surprising is he [Bulger} hadn’t mentioned it [the deal with O’Sullivan] before.”
    Again, Bulger was indicted in 1995 on a pretextual racketeering case for crimes that happened after O’Sullivan retired. These were not murder charges and were only expected to result in 6-8 year sentences. The case was a throwaway with a number of weak witnesses and other witnesses under extraordinary duress by the government. It was not in Bulger or O’Sullivan’s interests for O’Sullivan to walk into court and broom the case. It was perfectly reasonable for Bulger to go on vacation with his millions in cash and wait for that case to get tossed, as it eventually was discarded. While on the run from that case, Whitey acted like a guy who was not very concerned. He stayed in touch with people in Boston. I don’t find it “surprising when he was indicted he ran away in 1995.” Morris and the FBI were supposed to go to work to fix that while he was away. They just didn’t hold up their end of the bargain.
    The order of history is critical. O’Sullivan died in 1999. Bulger was not indicted for any crimes that occurred during O’Sullivan’s career [pre-1989] murder until AFTER O’Sullivan died. Therefore, the agreement was not relevant and made no sense for Bulger to raise it. Nor did he have any means to raise it. He was ensconced in a different life then.

    1. Patty:
      Martorano was indicted in 1979 and faced two years and he fled for 16; and then he was so upset at facing the 6 – 8 year sentence (as was Flemmi) they quickly jumped into the arms of the feds. The idea that a 6 – 8 year sentence (or more) was not frightening to Whitey who was then 65 years old I don’t buy. He’d spent time in prison and swore he wouldn’t return.
      It was very much in Bulger’s interest – if he had a deal with O’Sullivan – to have these cases dismissed. As to acting like a guy not concerned, the pictures I saw of his walk-up two bedroom apartment had sheets over the window (like that guy in Cleveland who held the three women prisoners) so no one could see in and he was said to have stayed up nights looking out worrying about someone coming to grab him. With all his millions he lived in fear of capture and at the level of a welfare recipient entrapped in a small area unable to travel anywhere. His 16 years on the run could be credited to him as time served as far as it seems to me. I’ve noted before he’d have had a better life if he continued to work as a custodian, lived in Old Harbor Village, retired and lived off his pension being able to walk where he wanted and when he liked. I cannot see where all his money or skill benefited one iota after he was indicted. Had he had a way out through O’Sullivan he surely would have done it. Why no evidence of any correspondence between them for ten to fifteen years after he was on the flight.
      As you know O’Sullivan died in 2009 so there were many charges that Whitey faced that O’Sullivan could have helped him out with if there was a deal especially after the 1999 indictment charging him with all the murders. If Whitey had a deal with O’Sullivan he would have called him in the same manner that he called Morris.

    1. Jay,

      I stand duly and humbly corrected, thank you. Nonetheless, I’ll stick by the proposition that it is not fatal or even suspect that Bulger failed to assert the immunity defense until after he was apprehended in June 2011. I believe it fits with common sense that he kept his head down. Consider Bulger’s circumstances while he was on the run….beachside with the woman he loved with a million or more dollars in cash. It doesn’t seem like a good move to give all that up to contact O’Sullivan to assert the defense. Besides, there was no way he could practically assert it.
      The issue was raised when it became ripe, that was after Bulger was apprehended in 2011.
      Perhaps it is more suspicious that Bulger remained a fugitive for 15 years while O’Sullivan was alive and wasn’t captured until two years after O’Sullivan died and took Bulger’s defense to his grave.

  2. Matt

    Concerning the feds decision to keep WB off the stand re his “immunity” testimony versus the possible potential value in the cross examination of WB after he asserts same:

    To begin with I agree with one of your final comments above “Right now the case is the prosecutors to lose…”. What I don’t agree with is your view that the prosecutors in this case have foolishly fallen into a trap set by WB et al (or at least missed a golden opportunity to slam dunk the case by crossing WB after his immunity testimony) by keeping him off the stand re immunity.

    I have no inside info on what is going on in either camp so my opinions, expressed below, on the trial tactics and prosecutorial decision making are just that, the opinion of an interested person, and no more and may or may not be valid.

    That said, in my opinion, don’t underestimate the prosecutors in this case. Wyshak and Kelly are serious people going about serious business very well if their record is how we judge them and as Parcells said “you are what your record says you are”. Many people on this forum do not like them but that doesn’t diminish their abilities as prosecutors (although it may cause some to underestimate them). Many have problems with their actions ethically but to date no court or administrative body has sanctioned them in any way (that I am aware of).

    I think (my opinion again) that they considered letting WB testify and decided against it tactically rather than being drawn into some elaborate trap.

    This is not the first “big case” tried by federal prosecutors. The feds have developed a playbook in cases like this and used it successfully time after time. They find every flip they can and throw him or her on the witness stand to say their piece (true or not). They then let the witness take their beating on cross. Then they throw the next flip on the stand. Repeat as many times as possible. Along the way introduce any evidence corroborating the flips’ testimony (if any exists). It is similiar to a football team that knows it can run the ball all day, up and down the field at will. It isn’t a pretty game but it is almost certainly a winning game. Introducing trick plays (such as the forward pass in Woody Hayes’ opinion) just isn’t necessary and could possibly be counter productive.

    Years ago the federal trial in north Florida of Carlos Lehder was the “big trial” de jour. Lehder was one of the founders of the Medellin Cartel (along with the Ochoas, Escobar and Gacha) which brought the Colombian govt to it’s knees and wreaked havoc in the USA by flooding the country with previously unheard of amounts of cocaine. The bodycount directly attributable to the Cartel numbered in the several hundreds each year in Miami alone. Innocent bystanders, witnesses, women and children were slaughtered along with rival dopers. A number of books are available covering the cartel. The case was tried for the feds by the US Attorney of the district himself, “Mad Dog” Merkle. Jose Quinon (then and now a first rank Miami defense attorney) and Robert Scola (now a federal judge in Miami) for the defense. As one of them told me later, everyday they ripped the govt witnesses to shreds on cross. Every night Carlos was happy thinking they were doing great. But the govt just kept throwing flip after flip at them and the defense could tell the whole weight of it all was overwhelming. In short, Lehder was convicted and sentenced to life then came back as a flip himself and testified at the trial of General Manuel Noriega, “the trial of the century”, the first time since Rome ruled the world that one nation invaded another for the main purpose of bringing the leader back to the victorious country for trial. BTW the federal model of flip after flip ad nauseum was employed and was again successful. Johnny Martorano carries the baggage of 20 murders (that we know of). Lehder admitted to importing tons upon tons of cocaine and was linked to hundreds and hundreds of murders. His sentence was reduced after testifying vs Noriega.

    Letting WB on the stand introduces a wild card element that the feds don’t think they need to win. Who knows what could happen? Why risk it? I think (my opinion again) that Wyshak and Kelly thought it over and decided they didn’t need it, that they have a winning case without it and so moved to exclude it. I think another consideration is that if Wyshak and Kelly follow the fed playbook and lose they will suffer little professionally at DOJ but if they deviate from the playbook (ie by letting WB testify when they could have prevented it) they open themselves to second guessing at DOJ.

    I also think that the way the case is charged Wyshak and Kelly are right in thinking their case is a winning hand. They don’t need to convict WB of all charges. A conviction on even one sends WB to federal prison for his lifetime. Look at Connolly’s federal trial (and regular readers here know my position on Connolly). He was acquitted of the most serious charges but Wyshak is looked upon by most, including those that matter to him, as the winner in that case. RICO conspiracy is incredibly hard to defend. Off the top of my head, the feds must only prove that there was a group of people operating together to commit crimes and the defendant knew this and did something (not necessarily criminal) to assist them. A RICO conspiracy conviction carries the same sentence (20 years I think) as a substantive RICO conviction does. They are usually sentenced consecutively not concurrently.

    Finally, personally, I wish WB was allowed to testify. This trial is going to be very interesting and he probably would have been the most interesting witness of all. I’d love to see some if not all of it in person. Unfortunately, after seats are allotted to the defense, victims’ families and the media there are few if any available to the general public. They will be showing close circuit broadcasts into at least one other courtroom but I don’t know the seating capacity. One more argument for opening federal courts to television like state courts have been for years.

    1. The Boston jury convicted Connolly of only one act under RICO for Connolly’s 23 years as an FBI agent: THat act was passing a case of wine from Bulger to Morris. The other four RICO acts occurred 5 to 10 years after John retired from the FBI and while he was a wholly private citizen: Those four were (1) lying one time to an FBI agent about an immaterial fact (whether Flemmi’s defense team had contacted him, a legal action) (2) writing a letter to a judge (3) telling Weeks in 1995 that he (Connolly) heard through the grapevine that an indictment was coming down ax Bulger, Flemmi etc. and (4)helping Flemmi’s defense by, according to Weeks, tellling Weeks to tell Flemmi to lie about whether Connolly was an honest cop. In sum, one conviction of transmitting a bribe, acquitted of taking any bribes, and four convictions relating to the exercise of his mouth: i.e., talking out of school; i.e. free speech, free expression. And for those nebulous crimes you write about RICO’s 20 year and 20 year sentences being routine? Surely you jest! At worse, most people expected John’d get a year in jail! One juror said repeatedly he’d never have voted to convict onanything if he thought John would do one day in jail; that juror expected probation for minor criminal acts as he perceived by an FBI agent with a distinguished highly decorated career dealing with killers! Give me a break! What happened to John Connolly was and is a grotesque travesty of justice!

      1. Bill:
        If you win on every count but one you have still lost as JHG has noted. If Whitey is acquitted of everything except that he forced Jimmy Katz to pay him protection he has lost and the world will think of it as a resounding victory for the prosecutors.

    2. JHG:
      Much of what you say I don’t dispute. Wyshak and Kelly could very well have made the strategic decision to keep the immunity defense out even though they could have had a field day working Whitey over. As you know there really is no one way to handle these case and your suggestion that it is better to handle it by the book in the environment they work rather than stepping outside what is usual makes a lot of sense.
      Much of my feelings as you may surmise is my anxiety over wanting to find out what the “grand bargain” consisted of. I’m also desirous of having Whitey take the stand which would have been more likely if he could have used the immunity defense.
      When you speak of the Wyshak and Kelly trial experience, it may be as extensive as you suggest but they are aware that their witnesses have already been disbelieved before a prior Boston jury in the Connolly case. That may have impacted some of their decisions. But as you point out even though in Connolly they lost the big charges and only won on the minor ones everyone considered it a big win and the defendant still got hit pretty hard.
      I liked your tale of the case where the defense counsel went home every day after having destroyed each government witness but the outcome of the case was a loss because even with the greatest lawyers and the most effective cross-examinations some cases are not going to be won. Whitey’s case is one of them.
      I fully agree with you that the avalanche of evidence here is just way too much to overcome. It’s not just the murders, as I had thought, but all the RICO stuff. You point out that a conviction on any part of it will have the same effect as a total win and total loss for Whitey.
      Thanks for your comments. It just shows there are all sorts of tactical decisions one must make leading up to a trial but in some cases even if you make all the wrong choices you can still come out as a winner.
      Finally, Whitey is not barred from testifying, he still may although I don’t see any point in it. All the good work Carney and Brennan do undermining the prosecution case will be undone after the prosecutors get through with Whitey.
      As to opening the federal courts to TV, that should be done. The people are going to wonder what it is they are trying to hide.

  3. Matt: Everyone is entitled to a defense at law. Interestingly, in the Civil Suit ax John Connolly both the FED defendants and Victims’ families’ plaintiffs argued Connolly was a lone wolf, “rogue agent”. Connolly was represented by no one, nada, at that civil trial. Interestingly, the Civil Court found as fact that Connolly was not acting “ultra vires” but rather “within the scope of his employment” which gets us back to the Supremacy Clause issue: Why was Connolly ever tried in Fla in the first place?
    2. Bulger, a mastermind criminal who hurt many and no doubt killed some, is also entitled to a defense.
    3. Was it St. Augustine (the Agustines were ann old gang in Southie in the 1950s) or St. Aquinas who articulated the “just war” principle and the principles of justifiable killing in self-defense and defense of others. Soldiers and police are required to kill sometimes.
    4. The thought is: To what extent may free people go to protect themselves against enemies: domestice or foreign? We have inherent rights of self-defense. What if our governmnet is trampling on our rights? What if we’ve exhausted or have no legal means of redress? It’s the “to be or not to be” conundrum.
    5.I recently posted on my facebook page that we should use every legal means to identify, arrest, prosecute and deter domestic and foreign enemies of the U.S. Constitution. What if some enemies are working for the FEDS? What if some are FEDS? What if a cabal within the FEDS have, Benedict Arnold style, turned Quislings, Fifth Columnists, and, for $$ or power, are acting in violation of citizens’ Constitutional rights to pursue happiness, practice our faith, to privacy, to be left alone, to be free from governmnetal intimidation, harrasment, intrusion, tracking, eaves-dropping? What are our inherent God-given rights as human beings to raise our voices and swing our arms, boxing-style, against those who’d chill, inhibit, suppress or impede our constitutionally guaranteed rights of speech, assembly, association and petition?
    7. I’ve mentioned how John Connolly’s rights were trampled. How many other citizens rights are being trampled here and now by an overreaching bloated government and its secret police forces?
    8. How many rotten apples are there in the DOJ, FBI and HOmeland Security? And how many sycophants march in lockstep, following patently unjust and questionably unconstitutional orders?
    THOSE ARE JUST A FEW POINTS TO CONSIDER AS THE FEDS ONCE AGAIN GIVE ATTY CARNEY A HARD TIME: TRYING TO WITHOLD CRUCIAL DOCUMENTS CARNEY THINKS HE NEEDS.

    1. Bill:
      1. The civil courts knew Connolly had no assets so in order to give the family of the gangster violence they had to make him an agent of the government. That Connolly had no lawyers in the mix made no difference to the outcome. The courts knew what they wanted to do and did it.
      2. Bulger has a very effective team of defense lawyers, more than most people will ever get.
      3. There was no “Augustine” gang in Southie that I heard of. I think people confuse it with the Gustin gang, some of who went to St. Augustine’s school. I don’t suppose you stretch the idea of self defense to the point that John Martorano brings it that if you think someone is going to rat on you then you have a right to kill them.
      4. Free people have a voice to convince others to throw out the bums when the government tramples on their rights. There is no right for a free people to engage in violence anymore.
      5. See 4.
      6. See 4.
      7. John Connolly was prosecuted within the system. He was represented by counsel. He still is. Not much you can do about that except seek remedies within the system or speak out about what you perceive as being an injustice.
      8. I’d suggest there are few rotten apples in the DOJ, FBI or Homeland Defense. Most are fine and dedicated people. But like different types of apples have different tastes, so will you find in these agencies people with different views. What some think is just, others may not.

  4. Is there anything a defendant could do if he felt his attorney was trying to blow his case during a trial? Let’s say his attorney is in cahoots with those prosecutors who have no problem putting known murderers on the stand. Or let’s say the defendant is a POOFed person with not much evidence against him but he’s POOFed so they need to convict him on something.

    Let’s also say that his lawyer promised to ‘do this and that’ to get him off since there is no evidence but during the trial his lawyer seemed to intentionally do nothing he promised. Is there anything a defendant can do during the trial in this case? Is a defendant able to stand and speak up in any way or would that anger a judge? I’d rather take a chance at angering a judge than being found guilty of something I didn’t do.

    I’m asking based on a lot I’m reading. There seems to be a lot of unethical games going on in the courts and I know lawyers who DO play them. I’m really curious about that.

    1. Question:

      A defendant always has the right to defend himself. It’s called pro se. One thing the defendant can do if he feels he is not being properly represented is to dismiss his attorney and hire another If his attorney is court appointed, she can ask to speak to the judge without the attorney or prosecutor being present and lay out her concern. Or, she can reduce them to writing and ask that she be allowed to give them to the judge. If the judge refuses and says she has to talk to the court through her attorney then dismiss the attorney and file the paper as a pro se defendant. Then it will be part of the record. After that is done ask the judge to appoint another attorney for the reasons stated in the paper (call it a motion,).
      A defendant can’t do a good job representing herself. That should only be done if there is no other choice. If her lawyer promised to get her off she should never have hired him. No good lawyer will ever do that because even with the facts 99% on your side you can always lose. A judge should not be angry if a defendant acts in a respectful manner and asks to address the court. It’s not a good idea to make a judge angry, she always has the last word, but if your choice is an angry judge and an inability to get a fair hearing then you have not choice.
      After conviction which is too late for many people you can always file for a new trial based on ineffective assistance of counsel but that sometimes is hard to show. I’d suggest a person speak to her attorney and straight out tell the attorney what her feelings are. Maybe the person can tell the attorney that unless things change she’ll file a complaint with the board of bar overseers.
      Not all prosecutors are alike. Some may be willing to listen to a defendant by having the defendant speak to a victim witness person in the office who can explain why she feels she is not being properly represented. I don’t think it would be good for the prosecutor to speak directly to the defendant. I don’t know many prosecutors who’d want to get in bed with defense counsel preferring to win the case without defense counsel’s help.
      In any system there are games and lawyers that do better than others but that’s part of the human condition. I’ve never had a defense lawyer conspiring with me against her client so I’d be surprise such a thing is happening rather than there being some big misunderstanding but if the defense lawyer guaranteed she’d get the person off, I’d suggest she look for another one.

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