Prosecutorial Discretion – It’s The Hard Decisions That Tell Us Whether A Prosecutor Is Made Of Sterner Stuff

With A Snow Storm Looming One Can Think If Winter’s Here Can Spring Be Far Behind

I’ve written about prosecutor’s and prosecutorial discretion off an on in a general way both here and here.  I’ve been more specific about it when I discussed the cases of Aaron Swartz  and the Caswell Motel case.  I’ve noted how I though it was used wrongly in the indictment of the probation officers and in the sentencing of Catherine Greig. I’ve touched upon the power of the prosecutor it in the case of Amy Bishop where I praised Norfolk DA Michael Morrissey. I’ve criticized the Massachusetts DAs for participating in a program that lets people pay a private company to buy their way out of prosecutions.

What brings this to mind is the case I read about today in today’s Patriot Ledger about a young man killing his fatherMichael Beaudry, 20, is alleged to have killed his dad, Ronald Beaudry 58. From best I can gather Michael and his father were having an argument over his use of a BB gun. Michael left the house and his father followed. Outside words continued and Michael struck out at his father with a plastic PVC-type pipe and hit him knocking him to the ground. The father’s head was struck at some point during the encounter, by the pipe or the ground, and he died.  Michael’s reaction was one of horror and remorse.

Mchael’s mother was at home at the time. He has an older sister. The encounter between father and son was probably building up over time. The father was probably upset at his 20-year-old son drifting along and the son was upset at his father’s constant demands that he get on with his life in a more responsible way. Shakespeare wrote about these father-son conflicts and they are ongoing parts of our existence.

Fortunately, most do not end in this type of tragedy. And that is what this is for the Beaudry family, a horrid happening that leaves a woman without her husband, a daughter without her father, and both seeing their son or brother taken from them and locked up in a prison cell.

Michael is being held without bail until February 27. His mother will have to bury his father and her husband in the meantime. The next thing the DA has to do is to decide what charges to file.

This is the situation that requires courage. The DA should sit down with his experienced first assistant and senior staff and decide what outcome he would like to see come from this case. He should do this in consultation with Michael’s family directly or through his lawyer. He must bear in mind that the facts seem to suggest this is not a murder case but one of manslaughter.

I know it will take courage to charge a  manslaughter because the usual thing a DA will do is charge murder and then at some point work it down to manslaughter in order to avoid a trial and force a plea.  One cannot afford to go to trial on a murder charge because the penalty is life in prison if convicted — a manslaughter charge leaves open just about any possible sentence. However by charging manslaughter the DA also gives himself plenty of options not the least is to work with the family to ensure its sufferings are lessened but also to insure the public is protected.

With the idea in mind that the over charging done in the Aaron Swartz case for the purpose of extorting a guilty plea has now caught the public’s eye, and new articles being written about responsibility of the prosecutors, it will be interesting to watch and see how this case is handled.

What would you do as a prosecutor? What do you thing should happen to Michael.? Think about this for a second and tell me what outcome would you think is best.

You see it’s not easy sometimes for prosecutors but that’s what they are empowered to do — make decisions fraught with risk that incorporates in them a consideration for the public but also the victims, in this case Michael’s mother and sister and relatives. DA Morrissey already showed courage in the Amy Bishop case throwing out the murder indictment against her. What he does in this case will tell us a lot more about him.

I’ll continue with my re-evaluation of Whitey tomorrow.



16 thoughts on “Prosecutorial Discretion – It’s The Hard Decisions That Tell Us Whether A Prosecutor Is Made Of Sterner Stuff

  1. Matt, see my other post today. Whitey did not say “I paid Connolly.” Even if he did, that leaves the serial killers saying Connolly took money and the Boston jury acquitting Connolly of taking anything of value (bribe money or rings). I believe the 12 jurors. We know Morris took money from bookies and the serial killers. Connolly was an agent for 21, 23 years. Who else besides Weeks, Flemmi and Martorano ever accused him of taking anything? And when did they first accuse him of taking money? Seven years after he was arrested in Flemmi’s case? You can believe the serial killers. We don’t. Moreover, when John was arrested in 2000, his house and bank accounts were exhaustively searched. There was never any record found of any alleged $20,000 a year payoffs for 20 years.
    The issue of the uncashed checks: Manny Ramirez had months worth of uncashed checks in his lockers; he had plenty of money in the bank and didn’t need the checks. So, too with John. Single people don’t live check to check if they are handsomely paid. (FBI $80,000 a year; Ramirez $10 million. The point’s the same.) Also, the secretary who saw several uncashed checks in John Connolly’s draw may have seen one or two paychecks and several other checks of small value as reimbursement for expenses. She may have seen 2 or 3 checks, and Fred Wyshak convinced her it was 6 or 7 checks. Anyway, one of Connolly’s fellow FBI agents said he and John cashed their checks together every pay day.
    I remember hearing a story about a Boston politician who had campaign contribution checks in his desk that were months old. He didn’t need the money. He didn’t need to cash them.
    The bottom line: you can believe the serial killers; we don’t.
    As far as getting the vanilla ice cream cone, the story is an irrelevancy. Lehr and O’Neil mark it as some sort of proof that Connolly, even as a seven year old, was easily corrupted by Bulger; that Connolly took an ice cream cone from a stranger when his mother told him not to take anything from a stranger. It’s not the story; it’s the way Black Mass uses it to impugn the integrity of a child and paint him in the blackest light possible. The way they twisted that story into something sinister characterizes what they did throughout their book.
    As an example: Do you believe this story from Black Mass? I quote:
    “Delahunt urged his old classmate-turned-gangster (John Martorano) to stay out of Norfolk County. Stick to Boston ‘for both our sakes’ Delahunt cautioned.”
    I don’t believe it. No prosecutor would tell that to a reputed gangster, an organized crime hitman. Black Mass makes it seem that the Norfolk DA is winking at Martorano, is condoning criminal activity and is indifferent to organized crime as long as it doesn’t hit his county. If someone maliciously started playing with those allegations and started asking how many investigations, indictments and prosecutions of Martorano and his brother there were in Norfolk County, you could see how easily they could paint a dark, sinister, distorted picture. That’s what Lehr and O’Neil have done to John Connolly.

    1. Bill:
      Whitey was clearly referring to Connolly when he said he paid for the information. Connolly was the one he relied on to get information from. He might have also paid others but Connolly was his main man.
      The Boston jury convicted Connolly of bribing John Morris. Morris testified Connolly got a case ow wine with $1000 in it from Bulger and passed it on to him. He was acquitted of taking a ring from Bulger that was testified to by Martorano.
      The only people who would know he took money would be the gangsters. John Connolly was the main handler of Whitey and Flemmi for 15 years. He hung around with them from 1972 to 1990, he continued his association with them after that even to the point he worked with Flemmi through Flemmi’s lawyer in an attempt to undermine Judge Wolf’s hearings. These were his associates.
      The median pay for an FBI agent now is $67,000; when Connolly was an agent it was around $30,000 give or take a few thousand. The secretary testified she saw “at least ten” uncashed pay checks. Pay checks and expense checks were not alike so she was not mistaken about them being pay checks. I never heard the stry about what agent said he cashed the checks every pay day with Connolly. He certainly didn’t show up to testify to that effect.
      Remember the ice cream story comes from Connolly not from Lehr and O’Neill. So does the story of how he met Whitey. So does his quote by Writer Engilsh that he told O’Sullivan Whitey was going to give information on the Mafia and his story about O’Sullivan wanting to meet Whitey and also his story about knowing Whitey and Stevie were murderers. These are Connolly stories not something made up by someone else. So are these quotes from Connolly: “The Justice Department is going to do everything within its power to try to make sure the full story never comes out,” and “ “[The Justice Department] put a hit out on me back in 2000.”
      You know I know about the meeting Delahunt had with Martorano at the Backside in Dedham. The Black Mass version takes a little liberty with the facts by making the statement into a quote. Delahunt indicated to Martorano that if he did anything in Norfolk just becasue they were friends from school he could not expect Delahunt to do anything but prosecute him to the fullest. if the Norfolk Country record was checked they’d find that each year we did more wiretaps on organized crimes groups than every other prosecutor, (DA, AG and US Attorney) in the state combined. You’d also find that Connolly constantly filed reports from Whitey complaining about our office going after him and that Connolly lined up with Whitey and Flemmi to go after Myles Connor hoping that if they flipped him they could get something on Delahunt so that they could have our office back off chasing the organize crime people.
      I don’t think Lehr and O’Neill are responsible for Connolly’s relationship with Flemmi and Bulger. He was with them, protected them and kept them on the street which is undeniable. He got them out of the Race Fixing case and gave them information to protect themselves even to the point of telling them that Rakes was complaining that his store was extorted from them.These are facts that are in the record. Now both of his informants are saying they didn’t give Connolly information but money for information. They are his friends talking about him. You suggest their complaints are recent but that means nothing. They only mentioned them when they had to do this.

  2. Matt, Here’s the quotes from Black Mass P. 21 “…St. Monica’s, the Sunday destination of Whitey’s younger brother Billy and his tag-along pal John Connolly.” p. 25: “Billy was the one who Connolly tagged along with on the way home from Mass at St. Monica’s and who got him into books.” So, John is tagging along to an from Church with Billy according to the Globe. So, too, when Billy was a senior in high school at 17 and heading into the army for two years, he somehow inspired the 10 year old to get into books. When Billy got out of the Army, John had moved out of the projects and was living in City point. Also p.25, “As a project kid Connolly got to know both Bulgers. He became good friends with Billy…” Now Black Mass is saying the 10 year old project kid became “good friends” with a 17 year old. What malarkey!
    I don’t want to beat a dead horse about the multiple fabrications in Black Mass, but I do want you and your readers to be aware of these two other glaring fabrications.
    Black Mass p. 340 “It had come to this: John Connolly was a gangster, according to the prosecuttion. That’s what the indictment boiled down to when all the legal jargon was peeled away. The agent had never been an agent; instead Bulger had succeeded long ago in planting one of his own inside the FBI. A federal jury agreed.”
    As we know the federal jury did not agree; John was convicted of one act during his 23 years as an FBI agent—passing the case of wine from Bulger to Morris; John was convicted of no other acts as an FBI agent. He was acquitted of leaking any information; acquitted of taking any bribes, etc. The other actions he was convicted of occured five to ten years after he had left the FBI in 1990: (1) telling Weeks in 1995 that an indictment was coming down; (2) lying to an FBI agent one time in 1999 about whether Flemmi’s “defense team” had contacted him; (3) writing a letter to a judge (about 1998)(the judge found the letter contained falsehoods and obstructed justice); (4) telling Flemmi to lie on the witness stand (1998) and (5) helping Flemmi’s defense team (1995-1999). I’ve previously punched wholes in all these charges and won’t reiterate them here. We can debate the veracity or seriousness of those charges, but keep in mind that Connolly was a private citizen when he committed four of the five acts that constituted the “racketerring” charges. In other words, since Connolly was only convicted of one act during his 23 years as an FBI agent, and since you need two or more “predicate acts” in furtherance of the conspiracy to be convicted of “racketeering”, if Connolly had been tried only for his actions as an FBI agent, he would have been acquitted of racketeering; in other words, while an agent, he wasn’t a “racketeer.” But I’m straying from the point. The point is Black Mass lied. The point is Black Mass knew that the jury did not believe FBI agent Connolly was ever a “gangster.” The point is Whitey Bulger had absolutely nothing to do with putting Connolly on the FBI and Whitey certainly didn’t “plant” Connolly inside the FBI. This is how Globe “journalists” arftully spin and artfully lie.
    But here’s the most grotesque lies: Read the back cover of the 2012 paperback edition of Black Mass: “John Connolly and James “Whitey” Bulger grew up together on the tough streets of South Boston.” As we’ve said, Whitey was eleven years older; Whitey was in the service from 1948-1952 when JOhn was 7 to 11; by the time Whitey got out of the Air Force and moved back into the projects, John had moved and lived in a different part of South Boston; from 1956-1965 (when John Connolly is between 16 and 25) Whitey is in a Federal prison. The point: John and Whitey decidedly did not “grow up together”; they grew up apart and had little to do with each other; not only were they never childhood friends, they weren’t even of the same generation. (Your generation is people ten years older and ten years younger; 20 years generally constitutes a generation.)
    Continuing the back cover of Black Mass: “Decades later in the mid 1970s Connolly was a major figure in the Boston (FBI) office and Bulger had become god-father of the local Irish-American mob.” Two more lies: In 1975, John was at the lowest rung of the FBI ladder; he didn’t become a supervisor until 1989; Whitey was never “god-father” of any Irish-American mob; You know the facts better than I do, but it wasn’t until after the race track indictments in the early 1980s that Whitey and Flemmi assumed control of a mixed Irish and Italian mob. Flemmi and Martorano were half-irish, half-Italian, I recall.
    A final quote from the back cover of Black Mass: “Lehr and O’Neil . . . expos(e) one of the worst scandals in FBI history and the black hearts of two old friends who preferred the darkness of permanent midnight.” First of all Whitey and John were not “two old friends”; they’d never been “friends.” Secondly, exactly when in his life did John Connolly develop a “black heart” and “prefer the darkness of permanent midnight.” While at BC? while at Suffolk Law nights? while he was teaching in Boston? while at the FBI academy? during his career when he received numerous condemnations? I’ll tell you when: according to Black Mass, it was in the summer of 1948 when he was seven years old and accepted that vanilla ice cream cone from eighteen year old Whitey; (never mind that Whitey was in the Air Force beginnning in April of 1948;) Whitey gave Connolly an ice cream cone and Connolly was doomed to darkness for life: so say the Globe writers.
    Journalists who write in the fashion of Lehr and O’Neil lose all respect in my mind. I would not trust a word they wrote.

    1. Bill:
      A couple of comments. Connolly told the story of Whitey buying him the ice cream cone. It was common knowledge among the FBI that he was telling it. Of course he made it up because Whitey was probably not around at the time and the last thing Whitey would be doing was buying ice cream cones. Connolly said he did it because their parents were from Ireland. If that were the case Whitey would have had to buy ice cream cones for thousands of kids in Southie.
      Also, you’ll not my post today and the Boston newspapers that Whitey is saying he paid Connolly for all the information he received. That leaves only one person denying he received money. I think Whitey turning on Connolly and saying that really hurts his denials especially in light of other evidence.

  3. i am glad to see that others on your blog are taking a hard look at the so called black mass timeline of whitey , billy and john c. when these black mass authors worked for the globe and put out the whitey articles in 1988 that said whitey had a special relationship with the fbi i believed it. ergo when they wrote the book black mass i thought that was true also. you bring up john morris and the fact they relied on him for a lot of information and now i wonder how much of that book was true. these men from the globe have a much better reputation that howie carr but the book black mass can no longer be called a true account of what happened. thanks again for your blog which draws a much clearer picture of what happened when based on fact not conjecture. i also like the depiction of steve flemi as lower than the belly of a snake. the congressman from south boston now seems more interested in senatorial election then providing the residents of his district current information on tom nee and his possible status as a federal informer in 2013 and recent years. regards,

    1. Norwood:
      Taking the time to go over all these things does tell a different tale. I’m as surprised as anyone at how much loose writing there has been about this issue. I did mention when I first talked about Black Mass that one thing that should be kept in mind is the Globe’s animus toward South Boston yet like others until I analyzed it more thoroughly I thought it was telling a fair story. It shows how wrong we can all be if we don’t look at a person’s motive in telling a story.

    1. Kid:
      Good question. The real family, the FBI, will miss her if she is chased out because she does what it wants her to do. However, the FBI won’t be embarrassed by anything that happens to her.

      I think the only one who will be embarrassed in this whole episode will be Ortiz and well she should be. They’ll be a lot of strutting and declaiming over the Swartz situation but nothing will come of it. Ortiz may have to testify before Congress and she’ll have half the panel saying wonderful things about her, the other half knocking her around a bit. She won’t do well because she doesn’t seem to do well when questioned by the press. Isn’t that where she came out with the now famous “stealing is stealing” quote to justify Swartz facing 50 years?. In the end when the fireworks are done end everyone goes home to get ready for the next day nothing will have changed because Congress has no staying power. It will flutter off to some other issue.

      I don’t know the woman. I’d like to think she’d step back, recognize she’s been bullied and dragged around by the tail by some willful prosecutors, get a little courage, common sense and humility, and act like the leader and make decisions not on the idea that everyone has to be punished to the maximum but rather each person before her is a different individual in a different situation and that every crime does not have to be punished and everyone’s property does not have to be forfeited and that much of what she is doing should be left to the state.

  4. Matt – it is fast approaching 30 days since the Recusal hearing. Any thoughts on what is taking so long? Requesting your pure speculation, i know – but the word among attorneys was that two, maybe three weeks would have been enough time – and yielded the perception of a thoughtful, yet swift/sure decision. any thoughts you or your commentors might care to share on why this is going to the wire? Is it really that complicated? Or is that panel overwhelmed with other work???

    1. Tom:
      I think of that and I keep wondering if I somehow missed the court’s decision. It can’t be the panel is overworked. Even if it were this is too important a matter not to address immediately. The courts can act quickly no matter what the workload since they set their own pace. Something else is going on.
      I’d guess it is either of three things.

      (1) If they are going to say Stearns can sit then it has to be that they are trying to get the three of them to agree. They do not want to have one of them come out with a dissent. A dissent would give additional fodder to the perception that he never should have stayed on the case. So maybe there’s one recalcitrant judge.

      (2) There’s also a consideration that if they are going to tell Stearns to step down they have to smooth his ruffled feathers, after all he’s clinging to the case like a person thrown over in the deep sea clings to a life raft. You have to understand that within the courthouse there must be judicial cliques. There may be some judges supporting Stearns who also have to be placated. These judges all have to live together and they prefer a quiet house. Aside from lessening the ire of their fellow judges,they have to find the judge who is ready to come in and take over the case and whoever that is his or her cases have to be dished out to others.

      (3) Everything is made into a “federal case.” In other words nothing is simple in the world of federal judges. Every decision has to be lengthy and full of citations to other decisions. Each judge has to read it and approve it especially if it lets Stearns stay as judge. They want posterity to say, “there was no problem with Stearns sitting, read the learned decision of Justice Souter who explains it all.”

      I would think the one consideration that would be in their minds above all other things is to ensure that the biggest criminal case in the early part of this century in Boston, if not the nation, is one that appears to be absolutely without taint. That could be decided quickly. Have Stearns step down.

      The delay would seem to suggest that they are attempting to make it clean by writing a learned opinion justifying Stearns remaining as judge.

      I could be wrong but I’d suggest it augers poorly for Whitey.

  5. Matt: some info on an earlier post. I went to the Burns Library. John Connolly graduated in 1965 with our cousin Jim A. Jim’s photo is on the first page of the Business School photos and John’s a few pages later. John got a BS in Finance from the Business School. 1965.
    2. Black Mass has John moving out of the projects in 1952. John was born in what (8-1-1940); so depending on when he moved he’d be 11 or twelve. Whitey was over 11 years older (born 9-3-29); Billy was 6.5 years older (born 2-2-34.)
    Bill first ran for office in 1960; as a lowly state rep he’d have no influence in getting john connolly into BC. John would have been admitted in the spring of 1961 and started classes that fall.
    Black Mass, as I read it, had John Connolly tagging along with Billy coming from Mass, and tagging along with Whitey going to Mass. I’ll double check that.
    However, considering Whitey was 11 plus years older than John, and Billy 6.5, it’s preposterous that John tagged along with either. Seven year olds don’t tag along with 14 and 19 year olds. Whitey was in the Air Force from 1948 to ’52; and John moved out of the project to City Point in 1952 at age eleven; Whitey was in prison from ’56 to ’65; you have to conclude that John’s contacts with Whitey were non-existent when they were growing up.
    But Black Mass has them growing up together; they “reached adolescence” together in Old Harbor (page 20 of BM); in 1975 they “renewed (their) friendship from Old Harbor”(BM p.15); Whitey was Connolly’s “old friend from the neighborhood” (BM p235). More BS from BM: when Connolly and Whitey meet in private or when Connolly and Flemmi meet in private Black Mass has their conversations in exact quotes. Dick Lehr must have been sitting surreptitiously in the back seat recording these secret conversations.
    Black Mass was written in hopes someone would make it into a movie. So, everything had to be spun. On page 19, they describe the only options open for work for young people in South Boston in the 1940s and 1950s: “armed services, city hall, utility companies, factory work, crime.” Where did all those doctors, lawyers, teachers, engineers, carpenters, electricians, small businessmen and shop owners come from? The moon? Black Mass is rife with falsehoods and stereotypes. Lehr and O’Neil are not to be trusted!

    1. Bill:
      Thanks for the correction on Connolly. Now go figure out what he did between 1958 and 1961, maybe he was in the Army.
      Not only do “Seven year olds ]not] tag along with 14 and 19 year olds, more so don’t 14 and 19 year old kids tag along with 7 year old kids. Think back to growing up in Savin Hill that is similar to Southie. When you were 14, how many 7 year old kids did you hang around with. It just never happened. It’s fiction spun by Lehr and O’Neill who have no conception what it is like growing up like people in the inner city did. Every page in Black Mass shows their suburban upbringing. But one thing you mention which really shows how Black Mass is more fiction than fact is they place conversations between Whitey and John Connolly in quotes as if they had a recording of them. That’s good for a fiction book but in a book that is supposed to be non-fiction, it is not something that should be done. The biggest fraudulent part of Black Mass is that it is based on information that was provided to the authors by two turn coat FBI agents Morris and
      Fitzpatrick who broke the FBI’s most important mandate of not disclosing the identity of an informant. Morris painted Whitey in the worst possible light along with Connolly. So did the other guy.

  6. I think that some important info that would help one make these decisions would be: What is Michael’s background? Does he have a history of violence? If not, I would be inclined to stray away from causing the family the grief that would accompany Michael serving a lengthy prison sentence, as that would surely impact the chances that he would become a contributing member of society, being a convicted violent felon and all. But then again, if this type of violent act is something Michael is capable of in the future… it may be best that he is put into the system. Hard call, probably even with all the info.

    1. John:
      You notice I didn’t suggest what I would do. I would first want to understand the things that you mentioned. The DA does have to try to figure out whether he is a danger to society or not. It’s not that doing that will be an easy task. As you correctly note he has to figure out “if this type of violent act is something Michael is capable of in the future.”
      We all know about Amy Bishop and how she killed her brother. There’s no doubt if the DA’s office had known about that case she would have been charged. (I know the prosecutor who would have made that decision so I know that for a fact.) Even if that had happened, it is unlikely she would have done much time, if any. She may have received psychiatric help. But back then in 1986 no one could have anticipated that in 2012 she’d kill three people. Would giving her the help back in 1986 have changed her life, no one knows for sure. If she were incarcerated back then, she probably would not have gone on to a professorship. She may have gotten released and worked in a post office and we’ve seen what some of those poor folk have done.
      The DA can’t be sure of anything but I suggest he err on the side of being compassionate. A lot of lives have been affected by Michael’s actions so any any undue harshness to Michael will only exacerbate the trauma. You’re right, it’s a hard call that’s why I thought I’d write about it so that it is made after due deliberation.

  7. I agree with you on this Matt, that it serves nobody to over charge this guy. It reminds me of the Kerrigan case (brother of Nancy, charged in the father’s death). That case was probably easier to properly charge because the proximate cause of death was heart failure. I think the prosecutor charged him with involuntary manslaughter, and he pleaded to assault and battery. I hope that Morrissey factors in the family’s wishes on this one as well.

    1. Pam:
      Yes, the Kerrigan case is a good analogy. Good point. We will have to see what is done. It should be interesting.

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