U.S. v. Flaherty – Part 5 of 10: Making Whitey Bulger’s Day

2015 08 21_3000The 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.)

 

 

7 thoughts on “U.S. v. Flaherty – Part 5 of 10: Making Whitey Bulger’s Day

  1. Very insightful post. If the Feds waive their right to assert the Supremacy Clause in one case have they waived it in all cases. Is there laches or estoppel? Having declined to assert it in the Connolly case are they barred from asserting it in other matters? Should Brennan ask for a re hearing in the Whitey case before the Court of Appeals. The DOJ can’t have it both ways. The power doesn’t exist in the Whitey case but they can assert it against Flaherty. This is comparable to the Probation Officers case. It’s a crime for the State officials to hire people who aren’t the most qualified but it is permissible for Federal Judges to hire law clerks who aren’t the most qualified or Federal probation officers. 2. If Bulman had a warrant to record that conversation he would be in compliance with State law. Can a Federal prosecutor waive or override the State Constitution and negate the privacy rights of six million citizens? Would SCOTUS be interested in this issue? What would the SJC say? What would the BBO’s position be? Where does the DOJ’s authority end? Without a warrant Flaherty is the victim of a crime not the perpetrator.

    1. 1. The DOJ has to assert the right. In the Connolly case where he was clearly acting in accordance with FBI directives in protecting his top echelon informants by tipping him off about investigations against them that was what he was supposed to be doing. Even Morris testified how he had no problem tipping off Baharian about a wiretap. He added that he didn’t want anyone murdered as a result but the addition was nonsense. The idea behind high echelon informants as Rosetti’s agent said is “to keep you safe.” That means telling them who is investigating them. The only problem with Connolly’s decision to do his duty was when it was revealed that the FBI was doing this to the public and an uproar occurred Connolly was set out as the sacrificial lamb by the FBI and DOJ so in that case it decided not to use the Supremacy Clause.

      Absolutely, Brennan should ask for a rehearing. This puts the Whitey case in a totally different light.

      2, Bulman could not get a warrant to record the conversation. Flaherty’s actions considered in their worst light were still not in connection with organized criminal activity and no safety risk was involved. There was no way to get a warrant in the state to intercept that conversation. The federal prosecutor did override the state law with his secret (no written record) making Bulman and the state cops into federal agents. The argument is they were then governed by federal law and not state law. Whitey is trying to make the same argument and it is falling on deaf ears.

      SCOTUS would have to have the Flaherty issue before it to consider it. Hopefully it never gets to that point since the case should go out at the district level. But the federal position is that it is not bound by any MA laws nor is any person it decides to bless bound by the law.

      Who knows what the SJC would say? It wouldn’t matter anyway since it is a federal issue. The BBO would punt not wanting to take on the federals. As you can see the DOJ has the ultimate authority in the land as seen by cases such as O’Brien, Greig, etc.

      True – Flaherty is the victim of an illegal act by the state police under the MA general laws which are supposed to control them. We’ve reached a fine state of affairs when the cops hired and paid by the state can violate state law with the blessings of an AUSA. That’s what Whitey wanted to argue all along – he was given the blessing.
      t

  2. Matt,

    Thank you for these observations. The Margolis Affidavit was never challenged. Perhaps it should be? What is the process to square up the two conflicting statements considering the ongoing Bulger Appeal? Great post!

    1. Jean:

      They really can’t be squared except the judges decide what they want to decide. I told the story how I was a young lawyer trying to figure out how two identical fact situations resulted in opposite conclusions by a different set of judges. I was told “the law is what the judges say it is.” It can change at the whim of judges.

  3. It was not a pretty sight around the Green Mountain coffee machine at Flying Pond Variety in Mt Vernon Maine.
    Some liberal,pansy infiltrator had substituted
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    ” Matt just fired 5 rounds from his 10
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    ” Matt only 5 rounds left in his intellect.
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    Stay tuned more to follow in the 32 part series

    Mattzilla. VS Freddy Krueger Wyshak

    In other news
    http://www.huffingtonpost.com/entry/ap-sues-fbi_55e02a6ae4b0c818f6176f8b

    FBI Agent Pretended To Be An AP Reporter. Now AP Is Suing
    Huffington Post August 28 2015
    “The FBI both misappropriated the trusted name of The Associated Press and created a situation where our credibility could have been undermined on a large …

    Also see

    http://m.telegram.com/article/20150828/BLOGS/308289872/-1/coulter

    EVEN THE NEW YORK TIMES HAS WACKO COMMENTATORS
    Worcester Telegram (blog)-

  4. Matt
    An excellent analysis regarding Whitey Bulger and his defense that he didnt get a fair trial. This Tim Flaherty case is disturbing in that a man as accomplished, professional, and hard working as himself has to be subjected to such an absurd allegation. I have learned a lot from your blog. One thing that is opening my mind is just how manipulative those in the law profession are when it comes to applying “the law”. Its really a dog and pony act in some of these cases.

    On a side note I am re-reading BLACK MASS and now when I read it I look for the angles. What I mean is what angle are teh authors trying to play when they present “the facts”.

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