The commonality between the Whitey Bulger case and the Tim Flaherty case is the presence of Assistant U.S. Attorney (AUSA) Fred Wyshak chief of the PCU in the Boston U.S. attorney office. He’s also the prosecutor who was behind the John Connolly case, As far as I can tell he has done nothing but prosecute cases over the last 37 years; he has been a prosecutor in the Boston U.S. Attorney’s office since 1989.
You may recall that Whitey Bulger told the judge who handled his trial that he did not believe he received a fair trial. His trial and appellate attorney Hank Brennan argued that he was deprived of his right to testify because his defense was considered an improbability. No one yelled louder about Whitey’s defense being implausible than Wyshak.
Whitey as best I can make out was planning to offer as a defense that he had immunity from prosecution because of a deal he made with a federal prosecutor. As best I can surmise this federal prosecutor met with Whitey and told him in exchange for something he asked him to do for him he would give Whitey immunity, or, in other words he would make Whitey into a federal agent who cannot be charged with any criminal acts committed by him while acting as an agent.
Anyone who has followed this blog knows how I have scoffed at Whitey’s suggestion that he got immunity from AUSA Gerry O’Sullivan. There’s even an affidavit from a Deputy Attorney General David Margolis that such a thing is beyond belief. The judges also agree that such things don’t happen. The big problem as you might surmise is that there is no record of this being done.
The group of us kicked Whitey and his lawyers down the street like we used to kick the can laughing at the absurdity of the suggestion that Whitey could be designated a federal law enforcement officer by an assistant US attorney. We found comfort that we all knew that such things just did not happen. “No one has a magic wand that can turn someone into a federal agent and immunize him from prosecution we all gleefully sang” with Fred Wyshak leading the chorus.
Now get this. In this case Freddy is telling us that he or his assistants have that power. Without meeting with the person, without any paper work, without any ceremony, and without for all purposes anyone knowing about it, he and his fellow prosecutors can magically turn people into federal prosecutors thus immunizing them from having to follow the state law.
If Freddy can do it I ask, why couldn’t Jeremiah O’Sullivan who was the head of the Federal Organized Crime Strike Force and who was the one that Whitey said he met with. You do know of the Supremacy Clause of the Constitution which states roughly speaking that a state cannot prosecute a federal agent who is acting for the federal government for state crimes.
I’d like to think that Whitey’s lawyers would be interested in Wyshak’s change of mind and heart. So too I suppose would be the trial judges and appellate judges who have backed up his position to this point. For me, I am embarrassed to have doubted Whitey’s attorneys’ argument.
Wyshak had to take a different position because if he didn’t then the state cop (Sgt. Bulman) who recorded the conversations between the so-called “victim of the hate crime” and Flaherty would have violated state law in doing that. The Commonwealth of Massachusetts outlaws the secret interception of communications even if one party to the conversations gives consent except for a couple of exceptions not relevant to the matter at hand. Both parties have to agree to the recording; that is why you are told by companies that they are recording your calls and if you say nothing about it you are assumed to consent. The federal government allows one party consent.
Thus we have Wyshak’s office saying they authorized the state cop Bulman to record the meeting with Flaherty. How did they authorize a state cop to break the state law? They say “in this case, Sgt. Bulman [was]effectively authorized to work on behalf of the federal government . . . )” The federal prosecutors go on to say:”the term ‘law enforcement officer’ means an officer or employee of the Federal Government or a person authorized to act for or on behalf of the Federal Government . . . ”
What is most egregious in this case is that the actions of the federal prosecutors done over a phone without any formal procedure or documentation can undermine the protection of the citizens of Massachusetts. We are supposed to believe that no longer do our state and local cops have to follow the Massachusetts constitution which is more strict than the federal constitution or the General Laws of Massachusetts if they call the right federal prosecutor. We no longer can assume our state and local cops have to follow the state law since an assistant U.S. attorney says he can make them into federal law enforcement officers.
What it boils down to is that the defense Whitey asserted and was derided by the federal prosecutors is now being used by them in this case. If an AUSA can make a state cop into a federal law enforcement agent why couldn’t Jeremiah O’Sullivan have done the same thing for Whitey. Whitey should have had a chance to show that.
(It should be noted that the Department of Justice under David Margolis refused to use the Supremacy Clause in Florida to protect FBI Agent John Connolly who was clearly acting for the FBI dealing with Whitey. That was because Wyshak wanted to prosecute him in a state court.)