John Kennedy Toole would have loved to have sat in the B.C law school audience at the recent gathering of the so-called experts’ panel consisting of those who were supposed to know about what Dave Boeri, one of the panelists, called the Whitey saga. He would have marveled at how these men knew so little about the subject in which they were supposed to know so much.
The panel consisted of good men all, from left to right, J.W. Carney, one of Boston’s most skilled defense attorney; Brian Kelly a federal prosecutor for a quarter century and the architect of the dismantling and prosecution of Whitey’s gang of bandits; Dave Boeri a reporter who has the best insight into the saga of all media denizens who did best not to get swallowed up by the many biases of most Boston reporters; Bob Bloom, a B.C. law professor who has a thorough well-grounded insight into criminal matters having even once done a little prosecution; and the director of the movie Whitey, Joe Berlinger, who dipped his foot into this area, empathized with the families of the victims, and tried to figure out what was happening which he is still trying to do. His fellow panelists blinded by biases did little to help him out. The moderator of the group was CNN big wig John King a product of the streets of Dorchester.
How then are these men who have achieved brilliance and fame in their professions when gathered together to speak about the Whitey saga rightly deemed dunces. It is because they avoided talking about the big picture that envelopes all of it. It is like telling the history of the universe without starting with the big bang. I’m not sure why they all avoid this. For some it seemed to run up against their main thesis, others perhaps just don’t understand its impact, or perhaps one or two have no knowledge of it. Whatever the reason the presentation did a disservice to those students, the aspiring lawyers, in their audience who sought to learn something about it.
I’ve been writing about the big picture over the past several days in various forms. It is the FBI’s Top Echelon informant (TEI) program. I suggest that without discussing that there can be no understanding about how the Whitey saga came about; recognizing it and the sinister implications of it then an intelligent understanding can be developed. The question with respect to the TEI program that I’ve asked over and over is what could the FBI special agents assigned to deal with TEIs promise them in return for their cooperation. John Connolly who probably had more TEIs than any other FBI agent said it was protection. Another FBI agent in 2011 told his TEI it was to keep him safe which seems about the same thing.
The TEI program is an officially sanctioned government program that was operated by the FBI. The main target of the program was the Mafia a group that J. Edgar Hoover believed was as dangerous to America as the Communist movement. He instructed his agents to work as hard against it as it did against the Communists. Those agents operating within the TEI program and their fellow agents accepted the direction of the FBI director and moved out against the Mafia.
The FBI was able to bring it to heel the Mafia in the same manner that the prior generation of FBI agents were able to beat back the Communist menace. Today the Mafia is a shadow of itself. Like the Communists it no longer threatens America. For that much thanks has to go to the FBI.
Matt,
I agree with much of what you wrote–particularly your critique of the panel discussion as lacking. There is no question that this Whitey Bulger mess has been an unmitigated disaster but I think it is wrong to judge the entire TE Program over decades based on this one debacle. Overall, as you state, the Bureau was effective in dismantling the Mafia. This TE business is high risk/reward and requires very skillful oversight which sometimes fails–and sometimes failed miserably.
Have to dispute two points, though, based on my experience. “Lazy” investigators can have (mostly worthless “paper”) informants, but CORRECTLY operating a GOOD informant is a ton of work and can pay off big time.
Also, while I defer to your knowledge of the state system, it is virtually impossible (maybe actually impossible) to get a federal wiretap through the labyrinth of DOJ approvals without a live informant. Theoretically, the probable cause standard can be met without it–I completely agree–but in practice it cannot be done. I tried it myself several times and remain convinced that I had demonstrated probable cause, but could get nowhere with the applications until I had an informant stage incriminating conversations over the telephone instrument or in the location I wanted to bug. The effective federal standard is actually much higher than PC in criminal cases.
Chris:
Thanks for the comment. You and I disagree over the TEI program. I believe it was a bad idea from the start which I suggest is proven by the reaction of people who saw how it operated with Bulger and Flemmi. If the FBI is protecting a high level gangster there is no way he can be controlled no matter how many rules and regulations are in place. A leopard doesn’t change his spots. I fail to see how you can’t join hands and agree to protect such people. The movie producer asked the question how can the FBI decide who is to be a victim of a crime and who isn’t.
Of course I agree with you there is a difference between lazy investigators and those who work hard. That’s one of the problems with government work that there is no recognition of that.
The State wiretap law is more strict than the Title III which allows wiretaps in the first place and whose provisions must be followed by the state. I can not help it if the FBI had decided that it cannot get wiretaps without informants. That type of thinking, and I heard some agents testify to that effect, is what probably results in the belief of the DOJ attorneys that they need informants. That is the FBI’s fault for not challenging those attorneys. I empathize with those agents like yourself who have done enough to get a wire without an informant and then having to run into someone obsessed with a formula as to the way things are done. Like with agents, there are good DOJ attorneys and bad one; the bad ones seem to go on because they are afraid to push the envelope because it might interfere with their careers.
I pointed to Lancaster Street that was done without warrants because it has come up during the Whitey saga. Off the top of my head I did two wiretaps relating to murder prosecutions that had no informants by using in one something the FBI is good at which is doing a profile of the actions of the criminal. I did a wiretap on a gang of criminals who were doing armed robberies without an informant and another at the state prison without one. Those are some that immediately come to mind.
The federal standard is not higher than the state standard; it is the people who are deciding on the standard are very unskilled or plainly timid in interpreting the law. By the way I never had any of my wiretaps tipped and with most cases as you know once you have the person’s word on tape getting a plea is not too difficult. That’s not to suggest all were successful. One which related to a person from Southie who was connected to Whitey involved the predictive matter where state troopers visited the guy in his apartment on Saturday evening and told him that his buddy had made admissions that seemed to put the guy in the jackpot. They scared the hell out of him. Based on a hypothetical we set up it was probable when the troopers left the guy would pick up the phone and call his buddy. We were on his phone when the troopers left. As predicted, as soon as the door closed he picked up the phone and called his buddy. The line was busy. So he left the apartment and went to his buddy’s house. A lot of work went down the drain.
I’d suggest that the FBI start teaching those who are obstructing the process on what probable cause is. Just one other thought, one problem with informants is that it is hard to sustain the suggestion that you have exhausted normal investigative procedures. It is much easier to show that if you don’t have someone involved with the group.
Matt,
I didn’t mean to suggest that there was any different legal standard for Title III’s state or federal. Probable Cause is Probable Cause–BUT how that standard is applied differs. I have seen situations, e.g. getting subpoenas where it was much tougher for my local/state partners to get them–they didn’t have access to “admin subpoenas.”
The WAY the legal standard is interpreted by those at DOJ, is interesting. What I saw was that their idea of what amount to probable cause for Title III approvals was extremely (excessively in my view) demanding.
One other point. Local DAs give snitches a kind of “protection” all the time from what I saw, IF what is meant by that is a pass on certain offenses in exchange for cooperation or testimony against a codefendant.
As long as it is strictly controlled, I don’t have a problem with authorization for a mobster to continue on with a numbers racket or loansharking, etc. in exchange for information of REAL VALUE. And as long as all understand that there is no free pass for violence. But it is admittedly very difficult to control all the various situations which arise–takes a lot of experienced people with very good judgment. They are not always there.
I was ready to indict some Miami-area LCN guy once in a fairly weak dry drug conspiracy (done with an informant and U/C wearing wires, btw). The Mobster cried to some agent who was getting credit for operating the guy as an informant. I told the agent, OK, my case isn’t that great, work the guy for 6 mo. or a year and if he gives up anything really valuable, I’ll ask the prosecutor to leave him out of the indictment. The time came and went and I asked for details–all the guy gave up was a lot of B.S. “intelligence” worth squat. They were upset in Miami, but I asked the AUSA for an indictment and the guy ended up pleading to 5 years (not a bad deal for the case).
Anyway, I think it is hard to generalize on a lot of this.
Concur … smoothly written. One breaks out of the stultifying narcosis of attempting to capture essence of words like ” corruption ” and gives themselves more latitude in fixing meaning because it reveals itself that there are many many points of reference on the shore and in the skies into which navigation of the Whitey Saga tie in. I like nautical metaphors. They are …. Oceanic 🙂 as it appears is the subject matter.This is what intrigues me also, just what is the radioactive half-life of the ” Whitey Saga” isotope. Still the convening of panels. Still the disquiet in the collective mind that unsatisfactory and specious conclusions have been reached ; that we drift with the FBI current …. And Past !!!
Great post. It would be very interesting to hear each of the “experts” response to your question. What if the experts were to agree that the FBI’s TEI program is mainly responsible for what is described as the “Whitey saga”? What happens then?
John:
If the experts agreed the TEI program under which Connolly was operating required him to do what he did, which is to protect Whitey and Stevie, then everything that he did to accomplish that was authorized by the federal government. One way to protect a TEI is to tell him where the dangers lie. For instance, if the FBI planned to squeeze John Callahan then it would be part of the program to advice Whitey and Stevie to stay away from him because that was going to happen. If Connolly told them he was doing his job. He could not have been prosecuted in Florida for that because under the Supremacy Clause a state cannot prosecute a federal agent for doing what he government tells him to do. For one thing, there would be no Florida prosecution and Connolly would have gotten out after he did his federal bit.
For another thing, the FBI would have to give up on the rogue agent theory and admit that it was its program that made the evil actions of Whitey and Stevie possible. The whole idea of corruption in the Boston FBI office would vanish since what was being done by the agents was pursuant to the wishes of their bosses. There would be no Connolly/Whitey conspiracy as made out by the Boston media; it would be an FBI/Whitey conspiracy which is a totally different thing. When we learned in 2011 the FBI still had the program Congressman Lynch from South Boston was stunned. He thought after the Whitey debacle it had ended. He demanded answers from the FBI why the program was still ongoing. The FBI told him it would investigate the matter. As far as I know it is still investigating it.
Another aspect would be if it was going on in Boston where else was it happening. That is one of the things the FBI did not want to have happened so they gladly sacrificed Connolly and let other Boston agents take a hit to protect the FBI’s reputation and have it avoid embarrassment. All those stories that have been written would have to be reconsidered.