In Idaho v. Lon T, Horiuchi, the Court of Appeals for the Ninth Circuit in 2001 wrote: “If federal agents are to perform their duties vigorously, however, they cannot be unduly constrained by fear of state prosecutions. Accordingly, the Supreme Court has held that the Supremacy Clause cloaks federal agents with immunity if they act reasonably in carrying out their responsibilities. See In re Neagle, 135 U.S. 1, 75 (1890).”
Lon T. Horiuchi was a FBI sniper. In late summer 1992 he was rushed to Ruby Ridge in Northern Idaho because the day before on August 21, 1992, US Deputy Marshalls got in a gun fight with the occupants of a cabin in the remote mountains. In that fight the US Deputy Marshalls killed Samuel Weaver and his dog Striker; Sammy’s father, Randy Weaver, killed Deputy Marshall William Degan, Quincy native, who was married with two children and a Marine. Randy Weaver and another were put on trial for that shooting and acquitted.
Horiuchi was in his sniper nest overlooking the cabin about 200 yards away. He thought Randy Weaver was going to shoot at a helicopter so he fired at him hitting him in the arm; he then shot again as Weaver, his 16-year-old daughter, Sara, and Kevin Harris fled back into the cabin killing Weaver’s wife Vicki, who was standing inside the cabin holding her baby.
In 1997 FBI agent Horiuchi was charged with manslaughter bay the State of Idaho. The U.S. Attorney filed a notice of removal of the case to federal court, which automatically took effect under the statute for removal jurisdiction. The federal district court judge dismissed the case. Idaho appealed. In a six to five decision, the Ninth Circuit court held that the case should be sent back to the lower court to decide whether Horiuchi acted “in an objectively unreasonable manner” and if so the immunity Horiuchi claims will not be honored.
The dissent noted “For more than a century, in a virtually unbroken line of cases in which federal officers have faced state criminal charges for actions arising out of the performance of their official duties, United States courts have invoked the Supremacy Clause of the Constitution to shield federal agents from criminal liability.” The court went on to say: [W]hen the federal agent is acting reasonably within the broad contours of official duty, and without malice, the courts have employed the Supremacy Clause to protect the agent from prosecution.” When the case arrived back at the federal district court, a new prosecutor from Idaho moved to dismiss the case and it ended.
The law seems fairly clear. A federal agent like a FBI agent is protected by the Supremacy Clause from state prosecutions for doing his job without malice. John Connolly was a federal agent. In Horiuchi the U.S. Attorney following the century old practice went into federal district court to protect the federal agent. As I noted yesterday, the U.S. Attorney in Boston not only didn’t do this but one of his assistants prosecuted the case in the state court in Florida. This aberration from 100 plus years practice seemed to have slipped under the nose of Connolly’s lawyers. Shouldn’t they have gone into federal clause to put forth his claim under the Supremacy Clause if the U.S. Attorney in Boston was intent on ignoring his claim? Did they ask anyone in Washington, DC to review the decision?
Or, did Connolly tell his lawyers not to put forth the claim? Connolly outside the courtroom has loudly proclaimed his innocence but when it came time to press his case in court before Judge Wolf or in his criminal trials he sat silently claiming his Fifth Amendment rights. That makes no sense to me. If you think you are right then you’ve got to stand up for yourself no matter the consequences.
Here is my conundrum: The FBI gave Connolly the duty to handle Top Echelon informants. There has never been clear line drawn on what he could or could not do in dealing with them. The Justice Department and the FBI are very happy to keep this murky. Why isn’t Connolly doing something in an official forum to have this issue decided?
In an excellent article by T.J. English in the online publication The Daily Beast Connolly is reported to have said: “My lawyers have information that since Bulger was brought in, he spoke to FBI agents and told them I had nothing to do with tipping him off [about a pending federal indictment]. And he told them I had nothing to do with this murder in Florida, not one damn thing.”
Based on that alone it seems to me Connolly and his present lawyers are way off base in their thinking. His road to freedom will never be through Whitey — don’t they understand Whitey has no credibility? Connolly’s only was out is to bring out the issue of his rights and duties as a FBI agent handling a Top Echelon Informant in the proper forum. He’s got to bite the bullet and start standing up for himself because nothing that can happen now can be worse than the situation he finds himself in — and find some lawyers who will help him — if he doesn’t, then the only conclusion one can draw is that he knew he was not acting properly.
Look let’s be clear about what happened in Florida:
Connolly went to trial and was convicted.
He appealed to the Florida 3rd DCA.
The court denied his appeal per curium ( without opinion) . This happens in roughly 50% of 3rd DCA cases. Why should he be a special case?
Now, If he does nothing, that is the end of his Florida case. The court is not going to wake up one morning and suddenly decide “hey, you know what, we ought to revisit he Connolly case!” This argument about not pissing off the Florida appeals court is ludicrous. The court has a tremendous caseload and as a result a very thick skin.
His next moves are a second appeal for ineffective assistance of counsel and then move to the federal courts. He has a better chance of hitting the lottery than succeeding in those forums.
Forgive me for commenting piecemeal on various posts. I am reading your blog from first to last post and sometimes can’t restrain myself.
I thought we were clear about the trial. The theory under which Connolly was convicted makes no sense. The per curiam opinion in the run of the mill case makes sense but in a case where a person gets 40 years it doesn’t. I’d say all those cases where such lengthy terms are imposed are special. What makes Connolly’s case more special is the trial judge stated he never should have been convicted of the charge and he gave the wrong instruction to the jury. Not often have I seen that in my career. In MA a judge would immediately have reversed the conviction.
I don’t expect the court to change its mind without some action by Connolly. Unfortunately, he does not seem to be getting competent representation on appeal. I understand it is public counsel which I can only assume from your description of the Florida court system is working under an extremely heavy case load. I agree with you that what I’ve been told is ludicrous and I can only hope that is not the attitude of his lawyer as was told to me.
I think that his present position dooms him to finishing out the rest of his sentence. He has a lot of kibitzers around his case who lament his fate but don’t want to do much more than that. I have a feeling that with aggressive representation he could get some relief because the whole Florida case seems such an outlier to me. But that’s up to him and as you’ve pointed out the choice of counsel can make all the difference in the world.
No problem with jumping around. I appreciate you comments.
Every public utterance of John Connolly and every private utterance I’m aware of and even the utterances of Steve Flemmi up until 2005, as reported by investigative reporter David Boeiri, are that Connolly never did or said anything intending that anyone be physically harmed. Connolly’s lawyers in Florida are waiting — for four years they’ve been waiting—-for a written decision from a Florida Appeals court on the clear violations of his consitutional rights based on the “statute of limitations” “ineffective assistance of counsel” and other constitutional and statutory defenses. Why Connolly’s counsel are not in Federal Court on these issues and the issues you’ve recently raised are good questions, but are not Connolly’s fault. Connolly has stood up in the Miami court—I was there and heard him— and in Boston, on radio and television—I heard him—, and repeatedly stated his innocence of all the “serious” charges brought against him. “Serious” is Shelley Murphy’s phrase and Connolly’s Boston Lawyers’ phrase. In Boston, both acknowledged tht he was acquitted of all the “serious” charges. In Florida, even the trial judge said that “the statute of limitations” had run on the “murder by gun charge.” Connolly’s lawyers claim that if they try to go to federal court, a federal court will invoke “the abstention doctrine” and will abstain until Connolly’s lawyers have exhausted all Florida “state court remedies.” I don’t blame Connolly. I blame the corrupt Florida judiciary that turned its back on the US Constitution, and the corrupt Federal prosecutors in Boston that inverted and perverted “Double Jeopardy” jurisprudence. You have previously pointed out that the exception to Double Jeopardy was carved out when a state court had not conducted a fair trial and freed a racist sheriff, for example, in a sham trial. Federal prosecutors have acknowledged that Connolly had a full, fair trial in Boston, and the same federal prosecutors know they lost on the serious charges; but then they teamed up and schemed and said words to this effect: “Let’s try Connolly in Miami on the same charges he’s already been acquitted of in a fair trial in Boston and let’s bring the same serial killers who testified in Boston to Miami.” Connolly was railroaded in Florida, framed and scapegoated. I also believe he was framed and unfairly tried in Boston, but my point is the federal prosecutors in Boston, from their perspective, believe he got a full and fair trial. They prepared the case for over five years. They presented it and lost on all the “serious charges.” I’ve argued elsewhere that some of the “less serious” charges Connolly was convicted of in Boston were bogus and/or “inconsistent” with charges he’d been acquitted of. Judges normally throw out inconsistent verdicts, as I understand it. I’ve also that Connolly’s lawyers, despite the “abstention doctrine” would be wise to seek redress in Federal court. During the St. Pat’s Parade debacle in Boston, Chester Darling sought redress in Federal court, which initially abstained but in subsequent years agreed to intervene. Even in “abstaining” the Boston Federal Court warned the Massachusetts state court that it might be trampling on cherished constitutional rights. Of course, the Mass. courts never listened. I fear the Florida courts will continue to turn a deaf ear to Connolly’s lawyers’ pleas. The books are cooked.. The travesty continues.
Connolly and Flemmi were working together from 1995 to the time Flemmi threw him to the wolves before Wolf. Of course, they would want to protect themselves. Flemmi’s word is meaningless.
If after waiting 4 years Connolly’s Florida lawyers don’t see the handwriting on the wall, I don’t know what to say. Connolly is at fault as I pointed out, he tells his lawyers what to do but he, like your, are still talking about the case in Boston which is finished; he should be thinking of his Florida problem.
Connolly stood up in the Florida court after he had been found guilty, at the sentencing hearing. That’s what I’m talking about. The time to do it is in front of the jury not afterwards. Connolly is always proclaiming his innocence in the wrong place and at the wrong time. The prison are filled with guys who are innocent according to them.
The abstention doctrine does not apply when it is apparent there is no opportunity to be heard in the state court. That is apparent in Florida with the way the appeal was handled. If his lawyers won’t act, then he should get some who will. Further, that doctrine does no apply to the Supremacy Act, which really is Connolly’s only way out.
You keep arguing corrupt judges and prosecutors. That makes no sense. There is no corruption. The prosecutors see things differently. Three is no evidence of judicial corruption. You want to argue things Connolly doesn’t even argue – he didn’t appeal some of his convictions in his Boston trial. There was noting inconsistent since the jury asked if they could come back in a certain way and Tauro said it was fine. Why would he throw out something he told the jurors they could do? Why do you keep going back over those things if you want to help him? IF you are in contact with him tell him to look forward not back.