The Real Issue Is Why Did No One Object to Whitey Bulger Being An Informant And Not Whether Judge Stearns Recuses Himself

Somewhere The
Palm Trees Sway

I’ve spent the last week discussing the issue of Judge Stearns recusing himself. This is now  before the Appeals Court.  That matter will be decided quite quickly. Stearns will be told to recuse himself or will be allowed to preside over Whitey Bulger’s trial. The latter result may come about if the Appeals Court ducks the decision by suggesting that Whitey’s lawyer J.W. Carney has brought the issue before it prior to the time it was ready for a final decision.

Meanwhile Judge Stearns will be deciding whether J.W. Carney may have the issue of whether AUSA Jeremiah O’Sullivan granted Whitey immunity decided by that jury.

I really don’t care whether Judge Stearns sits or not. I believe knowing his history he’ll give Whitey as fair of a trial as he’ll ever get. But what I think doesn’t matter. What does is the perception that will be left with the general public.  I’ve suggested from that point of view it is better for Stearns not to sit because of the perception of his partiality.

But here’s what I really don’t get, why make an issue of something that does not have to be an issue. Why is the prosecutor’s office so insistent on having Judge Stearns sit on the case? Why is Judge Stearns so anxious to sit on the case?

There’s no way Whitey will be acquitted of all the charges so why not make it a nice clean conviction rather than one laden with questions of there being a stacked desk. The trial is not scheduled until June. There must  be some judge with no background in these matters who can jump in and be fully ready to kick it off on the time-table already set.

A limpid picture of guilt is going to be made cloudy by the judiciary for what reason? Just because it can? I’ve got this feeling that the judiciary has become so isolated that no one is seeing the forest for the trees.

The whole Whitey affair has been messed up by the federal government. The FBI and the Boston U.S. attorney’s office tolerated an almost two decade relationship with Whitey and Stevie Flemmi that has brought disgrace to both of them. Why does the judiciary want to wallow in this mud?

AUSA Fred Wyshak untainted by any prior associations with the matter picked up on the knowledge of the law enforcement community and went after Whitey and his fellow gangsters in an attempt to bring an end to the cozy relationship between the feds and the gangsters and to try to make up for years of misdeeds.

He indicted Whitey and others for racketeering. Whitey fled. In the meantime Wyshak and his team kept heavy pressure on all Whitey’s gangster associates and turned them into rats as they scurried to save their own skins. Accomplishing that, Wyshak was able to develop evidence that Whitey killed 19 people. Some of the evidence is weak but other parts are rock solid.

There is little doubt that he will gain a conviction on some of these charges. Given his good work and the good work in most respects of his investigators in this one aspect of bringing down Whitey, although disagreeing and criticizing the way they handled some aspects of it, I can’t figure why is he not interested in having the question of judicial partiality removed from the case.

All I can figure is it’s probably he just wants to get on with it.  He’s been handling these matters for upwards of twenty years. He might be anxious to do  other matters. In this state of mind, he’s willing to just get a conviction regardless of the public perception. He’d be wiser if he backed off a bit.

But let me turn from that and tell you what really bothers me. What I find inconceivable is that Weld, O’Sullivan, Mueller, and others did not seem to think there was anything aberrant about White and Stevie Flemmi being informants. Yesterday I told how Weld figured the FBI didn’t want to investigate Whitey because he was its informant. Why was it he didn’t figure out that having this person who O’Sullivan said he knew was a cold-blooded murderer and the leader of a gang of vicious criminals as an informant was beyond the pale and should not have been tolerated. Why didn’t any of these men stop this mockery of justice? Who is running our justice system, the DOJ or the FBI?

Brian McGrory of the Boston Globe called me in 1988. He asked me if I thought Whitey was an informant. I told him no because I could not conceive of such a situation. After we finished talking, I didn’t give it a second thought. You just didn’t take gangsters like Whitey and Stevie Flemmi and make them part of your team. I’ll never understand how this happened nor will I be able to understand how the FBI ever thought it was a good idea to partner up with high level gangsters it knew were murderers.

One final thought on this issue. Perhaps Weld & company did not believe Whitey was as bad as we now perceive him to be. Judge Stearns who was part of that group and whose job it would have been to know these things suggests he knew nothing about any investigations into Whitey Bulger as of 1990. Are we wrong in taking our knowledge of today, after all the rats exposed their sordid lives and the many crimes they and Whitey committed, and making it the knowledge of people in and out of law enforcement during the Seventies and Eighties?  It is a common mistake to take what we know now and assume it was known back at a prior date.

7 thoughts on “The Real Issue Is Why Did No One Object to Whitey Bulger Being An Informant And Not Whether Judge Stearns Recuses Himself

  1. Perhaps one of your earlier blogs has already suggested a partial answer to your questions above. My understanding of your prior suggestion was that perhaps James Bulger was recruited as a covert agent cum informant.

    IF John Iuele is James Bulger that theory fits with what had been implied to me by John Iuele. If this were to be the case then the files that the Government has been ordered to produce should provide some firm answers to your above questions. Or not.

  2. Matt,you are correct in writing that it is not fair to impute the knowledge we have today to people living in the seventies and eighties. When investigative reporters, crime reporters, local police, state police and even a joint task force of state police (under Foley) and federal DEA agents could not link Bulger to a single murder prior to 1995, it’s unfair to assume the FBI knew. There’s also degrees of knowing. There’s general knowledge and specific knowledge. I knew two killers in Savin Hill: Jimmy O’Toole and another guy named “Red” who used to hang up Connor’s Tavern. I knew they were murderers by reputation; I had no knowledge of anyone in particular who they had murdered. Sometimes we write “he knew” when we mean “he suspected” or “he heard.” Martorano is an example. Martorano fled Boston in 1980 after the race fixing indictments. Most of his killings occurred in the 1960s and 1970s, I’m sure local police and local DAs knew or suspected he was a murderer, a gangster, a gunman, but lacked sufficient information to indict him. Mrs. Murray is another case. She did inform the Feds that Bulger was involved in Halloran’s and Barrett’s murders, but even her husband said she was crazy and not to be believed. She eventually killed her husband, confirming his assessment. I’m sure the Feds investigated and found that her allegations were not corroborated and not believable. When our friend Eddie Connors was killed, there were many rumors about possible killers. But no one had concrete information. On the issue of wiretaps: I am also sure that the Feds did inform Bulger and Flemmi about certain wiretaps. They did so to keep them free, on the streets, as sources of information against organized crime. They thought they were acting in the best interests of the community in taking down the New England Mafia. They likely considered Bulger and Flemmi the lesser of two evils. They may have suspected Bulger and Flemmi were involved in murders, but they may also have had their reasonable doubts. In sum, they lacked proof, probable cause. The FBI did not have state police, local police or investigative reporters in handcuffs. The fact is there simply was not sufficient evidence in the 1980s for anyone to indict or arrest Bulger or Flemmi, as there was not sufficient evidence in the 1970s to arrest Martorano. I keep going back to what I heard in the Miami courtroom when Fred Wyshak asked John Connolly whether he was aware before 1990 (when he retired from the FBI) that Bulger had killed anyone. Connolly said, “If I was aware he killed someone, I would have arrested him for murder.” Words to that effect! Connolly went on to explain that almost all the men in the top echelon informants program were considered murderers. Everyone in the FBI and DOJ, including Wyshak, were and are aware that they are dealing with gangsters and gunmen; they are aware that every “made man” in the Mafia has blood on his hands. Murdering someone has long been reported to be one of the conditions for becoming a “made man.” I don’t know if that’s still true, but I’ve read that it was true in the past. Be that as it may, the FBI knew it was dealing with informants who were capable of murder. As you know, there’s a huge chasm between knowing someone is a gunman, and indicting someone for murder.

    1. William M.
      You make a good point. I’ve said this before and you reminded of this that these gangsters don’t go around publicizing their killings. To quote Weeks, the idea of committing a crime is not to be caught and a disciplined person like Whitey was not about to tell people what he was doing especially since he for the most part avoided demon rum. How many people ever got prosecuted for the Boston gang war murder when everyone had an idea who was doing them but they were just guessing at them.
      Murray never said his wife was crazy. The FBI agents reported he said that but they were lying to justify their subsequent failure to follow up on anything they were given. Murray wasn’t brought to Boston to be interviewed by the FBI and not know why he was here and what his wife had been telling Weld. She did kill Murray and rather than showing she was crazy it proved otherwise since all believed it was self defense.
      The FBI set up a program to partner with people who were probably murderers, no question about it. It is still ongoing.

  3. Perhaps you can enlighten me? It has been my understanding that since the Congressional Hearings back in early 2000 that President Bush made an Order to seal the government’s Top Echelon Informant Program files, which would include the Boston FBI operation. If this is the case then how can the US Prosecutor comply with Judge Stearn’s recent order to produce any documents that involve the immunity issue in USA v Bulger? Would not the release of this information require another Presidental Order to left the existing seal? Or have I misunderstood the scope of the Bush seal?

    1. Jean:
      Bush claimed executive privilege over certain of the FBI files and refused to give them to the Congressional investigators. Eventually he relented and gave the records, or at least some of them, to them. I don’t know if they were related to the Top Echelon Program or more to the matters surrounding Whitey.
      I believe all the records relative to Whitey are available and have been given to defense counsel. There is no known written record regarding the immunity given to Whitey. As I understand it that was given verbally.

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