John Connolly has just been dealt an ace. The card game goes on. The next move is up to the prosecutor. The case in Connolly’s favor was decided two to one. There was a vigorous dissent put out by a judge. That the decision was a split decision makes it more likely that the Florida Supreme Court will grant a stay of Connolly’s discharge and accept the case for further review.
The dissenting judge, Leslie B. Rothenberg, called the decision of the majority “grave error” which is a term not usually used among judges. It seemed to me Rothenberg wrote her dissent as if she has a horse in the race since she went to great length to set out the background facts of the case making every negative influence she could against Connolly. She could very well have been wearing a cheer leader uniform with the letter “W” in bright pink on her green sweater cheering for Team Wyshak.
I found it interesting that she told how Connolly “prepared and submitted a series of false reports suggesting that other organized crime factions in Boston were responsible for Halloran’s murder.” It’s true that Connolly filed reports on the Halloran murder relative to what Whitey was telling him. That they turned out to be false after the fact doesn’t show that at the time Connolly was filing them he knew them to be false.
One of the problems judges have when it deals with informant information is they assume the FBI agent (or any law enforcement officer) who writes down information from an informant believes that information. That’s not the purpose of those informant reports. The purpose is to keep track of just what is being reported so that it can be followed up on if it corroborates other information. The handlers of informants usually know a lot of the stuff they are getting is not worth too much but they put it into their reports for what it is worth but that they do does not mean they believe it to be true.
The judge’s take on Connolly’s reports is he was putting them in to protect Whitey when in fact he was just recording what Whitey told him which was several different things. Because it was in Whitey’s interest to turn the investigation from him doesn’t mean that was Connolly’s interest.
Connolly at trial was convicted of second degree murder with a gun. He was acquitted of first degree murder and conspiracy to commit murder. The case seems to come down to whether Connolly’s possession of a gun at some time during the planning of the murder, no matter how remote to the murder was sufficient to support his conviction of murder with a gun.
The two judge majority pointed out the charge only indicated one gun was involved in the murder and all agree that was the one possessed by Martorano who did the murder. The majority says that you look at the events around the murder to determine whether Connolly was carrying a gun and noted he was in Massachusetts while the murder was in Florida. The dissent said that’s the wrong standard. She said that if at any time during the planning of the murder of the victim John Callahan Connolly had a gun that is enough. Flemmi testified at one time when he met Connolly he had his FBI issued gun with him. For the dissenting judge that was enough even though that meeting was months away from the murder.
My gut tells me the dissent is way off base in the legal theory. If Connolly was convicted of the conspiracy aspect of the crime, conspiracies can run over long periods of time, then perhaps his possession of a gun during that time might have relevance. But in this case where he was acquitted of the conspiracy, then it would seem to me that the reference to the gun would have to relate to a gun that was in proximity to the murder.
Here’s where the dissent errs. It could not possibly be the intent of the law that if I went to a local firing range and took some practice with a .45 caliber pistol during a period I was planning a robbery with my friend Henry, and a couple of weeks later in pulling off the robbery neither one of us had a gun but Henry who had a knife on him got into a struggle with a person who died from stab wounds, that I could be charged with murder with a gun. That is the theory of the dissent.
Even though the judges make the law so it is very difficult to know how cases will come out, even cases with seemingly identical factual situations, the judges still must write their decisions in such away so as to avoid results like the example I gave. Their decisions should not lead to results that make no sense.
Connolly being acquitted in Florida is against the interests of many people, including powerful people in the federal government. I expect the prosecutor to appeal the case to the Florida Supreme Court. That court should not accept it but as I suggest a lot is going on in the background. If it accepts it, then it will be a year or so before we learn the final result.
The right position for Florida now is to let Connolly out on bail. Until the Florida Supreme Court acts to overturn the Appeals Court, he is an innocent man. The likelihood of the Supreme Court overturning the Appeals Court should be remote but this is not like any other case so no one knows what can happen. But kudos to the two judges who had the courage to follow what appears to be the most appropriate interpretation of the statute governing the crime.