How Federal Prosecutors Change On A Dime By Using Known Liars As Witnesses

It was not until I reread Ralph Ranalli’s book Deadly Alliance that I recalled the following statement by the federal prosecutors.  The statement was made in its appeal of Judge Mark Wolf’s 661 page decision handed down in 1989 concerning the FBI’s relationship with two of its informants, James “Whitey” Bulger and Steven Flemmi.  During the hearing Flemmi took the stand. As I have documented in other areas he told one lie after another so that if one were honest with oneself there was no way to tell wherein the truth lied. But somehow judges seem to believe they are  able to figure that out.

I know of only one case during my career when a judge being faced with such a situation did the right thing. I forget the exact issue but it was a civil case involving an alleged contract between John Doe and Mike Moe. Doe testified on direct about the conversations that led up to the contract; on cross-examination he backtracked when shown prior statements that differed from his present testimony, he hemmed and hawed over other things, and he was making a terrible presentation where to decide what was true would amount to guesswork, which is common whenever a criminal testifies.

Moe’s lawyer was still doing his cross-examination when the judge interrupted. He said he had heard enough. He told Doe to step down from the stand. He said that he did not believe one word Doe testified to and that he was dismissing the case with prejudice. That too is what Judge Wolf should  have done rather than picking and choosing what to believe or not to believe when Steven Flemmi testified. Those things he decided to believe he incorporated into his 661 page decision.

The statement made by the prosecutors on appeal was: ”The district court’s finding rests on belated, inconsistent and inherently implausible testimony from a life long organized criminal concerning events in the distant past. It cannot be sustained.”

Apparently the Court of Appeals took note of that statement – ”implausible testimony from a life long organized criminal” – and reversed Judge Wolf’s findings. The prosecutors argued and the Court of Appeals agreed that the testimony from someone like Flemmi was incapable of being relied on.

Well you would think that would end the career of Steven Flemmi as a witness. Yet it did not. The same prosecutors who were telling the court he should not be believed would turn around and use him as a witness in two trials – one against Agent Connolly and the other against Whitey Bulger. How does one square the circle?

When Agent Connolly sought a new  trial in Boston he complained about the testimony of Frank Salemme pointing to a lie he told. The Appeals Court said that if the prosecutor believed Salemme lied about his involvement in DiSarro’s slaying it cannot be allowed to argue that Salemme was wholly truthful in his trial testimony in this case. Likewise if the prosecutor believed Flemmi was incapable of being believed in his testimony before Judge Wolf it should not be allowed to say his testimony before the jury after that was truthful.

Yet that is what it did. What made it even more unsettling was watching the prosecutor in the case against Agent Connolly laughing with Flemmi as they discussed the murder of Brian Halloran. There are lots of problems with our system of justice – the main one being the delays in handling cases – but one that seems eminently solvable is not to require jurors to decide when a known liar is telling the truth.

3 thoughts on “How Federal Prosecutors Change On A Dime By Using Known Liars As Witnesses

  1. Matt

    We got the same problem here in Maine.
    regarding Maine lawyer Amy Fairfield

    https://bangordailynews.com/2021/07/11/politics/lawyer-withdraws-from-nearly-200-cases-after-not-complying-with-state-investigation/

    Maine Lawyer withdraws from nearly 200 cases after not complying with state investigation

    See

    https://www.pressherald.com/2021/03/03/lawyer-wants-access-to-maine-crime-lab-records/

    Maine Lawyer goes to court for access to Maine crime lab records
    York County attorney Amy Fairfield says the public should have more information on how the state police crime lab operates, including employee disciplinary records and its analysis of evidence.

    Amy Fairfield said she’s seeking in-depth records on the operations of the Maine State Police Crime Laboratory because scientific evidence, particularly DNA analysis, has become a critical and sometimes deciding part of criminal court cases. She said Mainers should have more information on how the state’s sole criminal laboratory analyzes evidence.

    In a filing in York County Superior Court, Fairfield said records she’s seeking include information on employee disciplinary action over lab procedures. She said the state has withheld information about a technician who quit while the state was pursuing disciplinary action.
    Fairfield filed a Freedom of Access Act request to get the technician’s personnel file to see if it pertains to evidence in her client’s cases, and eventually received the file under a gag order after the state fought to refuse her access. She noted in her filings that a 1972 U.S. Supreme Court ruling requires states to turn over information that might call into question the analysis of scientific evidence, just as they are required to provide evidence that might clear a defendant who is on trial.
    Fairfield said crime labs around the country are coming under closer scrutiny, particularly in the wake of the FBI’s disclosure in 2015 that nearly every examiner in a key forensic unit gave flawed testimony about analysis of hair evidence in most of the trials in which they appeared during a two-decade period before 2000.
    Those cases included 32 in which defendants were sentenced to death, 14 of whom were either executed or died in prison.

    In other miseries…

    https://www.detroitnews.com/story/news/local/michigan/2021/07/11/fbi-agent-audio-raises-questions-sabotage-whitmer-kidnap-case-defense-suggests/7931839002/

    FBI agent audio raises questions about sabotage in Whitmer kidnap case, defense suggests

    https://www.nytimes.com/2021/07/10/us/politics/athan-theoharis-dead.html

    The New York Times
    Athan Theoharis, Chronicler of F.B.I. Abuses, Dies at 84
    Athan Theoharis, a pre-eminent historian of the F.B.I. whose indefatigable research into the agency’s formerly unobtainable files produced …

  2. Thanks for this interesting article Matt

    1. Do you think that Flemmi knew that the hit on Disarro was going to happen or have it orchestrated? As it is a bit of unbelievable coincidence that the day that he goes to his supposed friend’s home. He sees someone being strangled and then runs away, while the Salemmes just let him leave.

    2. What do you make of this article from the Boston Globe as it seems that Wimpy Bennett in his day had a very treacherous reputation in the Boston underworld. Just like his young protege Steve Flemmi would later have?
    https://www.newspapers.com/clip/81217852/the-boston-globe/

    3. Why did Sonny Mercurio admit to being an informant during the Wolf Hearings when he could have just have denied being one like how St. Laurent did during the proceedings?

    1. David:
      s
      1. Flemmi is a liar. As a betting man knowing he was being aided and comforted by Wyshak – didn’t he despite the many murders he was involved in get to keep most of his assets and never go into the Bureau of Prisons and for all we know lived in comfort in some safe house – he would gladly have done anything Wyshak wanted him to do. I doubt he was at the house. He most likely heard Salemme or some of the others tell him what happened. He put it away for future use just like he blamed Whitey for having him murder Debbie Davis coincidentally on the day before she was leaving him for a guy in Mexico. Didn’t Flemmi tell the rabbi story about the shooting of Punchy McLaughlin which was a total fiction. It goes along with what I wrote today. No one should be convicted based on gangster testimony.

      2. Wimpy Bennett was pretty much as the Globe described him. I would put his murders closer to the number 10 than 50, he was once buddies with Patriarca who called him the richest gangster in Boston aside from Jerry Angiulo, Patriarca was intercepted telling one of his guys Wimpy could not be trusted. He ran a barrroom in the Dudley Street area of Roxbury that was a hang out for the gangsters. It looks like he was killed by Flemmi on orders from Angiulo/Baione – the latter Baione hated him.

      3. I believe by the time Sonny showed up at the Wolf hearings everyone knew Sonny was an informant. St. Laurent was probably still going around denying it.

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