I have to be frank. FBI Agent John Connolly is not high on my list of favorite people. He was convicted in Boston of giving a bribe to his supervisor that came from Whitey Bulger; and of several things he did after he retired from the FBI involving working with Brutalman Kevin Weeks trying to help his former top echelon informant, Stevie Flemmi.
These were not all the charges. The serious charges were those of obstruction of justice relating to murders and extortion. These all floundered. The Boston jury acquitted him of those.
One acquittal in particular is of note: the obstruction of justice relating to the murder of John Callahan. Connolly was convicted of a variant of that charge in Florida. The idea that no person can be tried twice for the same offense somehow doesn’t apply to Connolly. Although he was prosecuted by Florida and not by the U.S., a U.S. prosecution team was part of the Florida prosecution. It seems that a lot of things that apply to most of us don’t apply to Connolly.
My inability to have a fondness for Connolly is that he was involved in certain things as an FBI agent that I think went far beyond any permissible action by a law enforcement official even though they were sanctioned by the FBI. These relate to acts he did to protect Whitey Bulger which caused grievous harm to others. He undermined investigations, participated in the investigation and indictment of an innocent state trooper of 23 years service, John Naimovich, and in the events surrounding the prosecutions of Myles Connor, the latter aimed at undermining the Norfolk District Attorney’s office where I worked.
As you may surmise I hold no brief for him. I bring that up because even though I’m not a fan of John Connolly, I see in his case, as I saw in Greig’s, people losing their way when it comes to doing justice. Whether we like or dislike a person, we should always want justice to be paramount in dealing with that person. Haven’t we been brought up to believe America stands for “liberty and justice for all,” not just for those in favor with the feds or media, or connected to politicians, but even for the most venal.
An earlier comment to my blog by William Connolly, who unlike me is a big defender of John Connolly, called to my attention a news report that you can see on YouTube. It relates to the sentencing of John Connolly to 40 years in prison in Florida for, as I mentioned, a crime a Boston jury acquitted him of. It’s not so much that he was tried twice for the same crime by federal prosecutors that is unjust, it is that he was convicted in Florida for a crime based on a judge’s admission that he gave the wrong law to the jury and had he given the right law, Connolly could not be convicted.
The judge noted that for Connolly to be convicted under the crime for which he was charged the “defendant had to possess the actual murder weapon at the time of the murder was committed [in Florida] and the defendant was in Massachusetts at the time the victim was killed.” Then even though the jury had no right to convict Connolly, the judge noted that Connolly’s lawyers failed to file a motion in time to toss out the verdict so he upheld the wrongful conviction.
Here’s what happened. First, the jury found Connolly not guilty of first degree murder conspiracy. It did convict him of second degree murder. Apparently an essential element of that charge is that Connolly must have possession of a gun at the time of the murder. The judge wrongfully instructed the jury that Connolly did not have to pull the trigger himself or even be present at the crime scene to be convicted in Callahan’s killing. As we’ve seen on YouTube, he recognized his mistake after the jury convicted Connolly.
It’s like being charged with an armed robbery and the judge instructing the jury it could convict you if you weren’t armed. The jury does and goes home. The judge realizes his mistake. He then blames the lawyers for not correcting him. The defendant is punished for something he didn’t do.
In effect, Connolly was wrongfully convicted. He did not commit the crime for which he was found guilty. You’d think they’d be a rush to correct this from either the federal prosecutors or someone in Florida. We know they don’t like Connolly but that’s never been a reason to imprison someone. There’s little justice in having a person in prison for a day for a crime he did not commit never mind forty years.
I’ve mentioned this before. The Florida appeals court upheld the Connolly’s conviction but it did not write an opinion explaining how if a jury wrongfully convicts a person because a judge wrongly instructs them that person should be in prison for 40 years. It really seems something is rotten in Florida – an unseen dirty hand working in the background to keep Connolly in jail.
How can it be that Florida is so indifferent to Connolly’s plight? Are all the judges, lawyers and other legal officials in Florida so blind to justice that there is no outrage at the appeals court’s silence in the face of this? Is the Florida media so intimidated that there is no one that feels that this wrong should be righted?It’s over four years since Connolly was convicted. How is it the prosecutors in his case knowing this have done nothing. Fred Wyshak commented after Connolly’s trial,”evil triumphs when a few good men fail to act.”
But the truth is, “evil triumphs when good men become evil.” Wrongly taking years of freedom away from Catherine Greig and John Connolly is a plain evil act. Justice succumbs when people sworn to do justice do otherwise.
Quick answer:
The indictment for 1st degree conspiracy left the State with the same problem re SOL. Florida treats conspiracy like the Feds do. Certain statutes (RICO, money laundering and narcotics) contain a conspiracy clause within the statute outlawing the underlying crime. In these statutes conspiracy to commit is punished the same as actually committing the crime. For example conspiring to traffic in 1/2 kilo of cocaine in Florida will get you the same 25 year min man as if you actually trafficked in it. Of course you can be convicted of both and sentenced consecutively for both as conspiracies do not merge in Florida.
For the rest, the vast majority, of Florida crimes conspiracy to commit is handled by FSS 777.04 that makes it a crime “one level below the charged offense” to conspire to commit the offense. So while first degree murder had no SOL, conspiracy to commit first degree murder was not a capital offense but a life felony that carried a SOL. The answer was to add the “while armed” to the conspiracy count to bump it back up and defeat the SOL defense.
I don’t understand the reasoning behind not requesting a rehearing before the entire 3rd DCA. I believe I was told that he had requested the rehearing and it was denied. But I am not sure of that.
I obviously enjoy your well reasoned take on the whole Bulger investigation/related trials and do agree with most of what you post.
I disagree with your belief that the Florida case was an injustice. While I’m an interested observer like you, I did not have any role in that prosecution.
Turning to the appeal issue first:
In Florida, a defendant convicted at the Circuit Court (felony) level has the right to appeal to the appropriate District Court of Appeal. In Miami-Dade County (and also including Monroe County aka the Florida Keys)this is the Third DCA which is physically located in western Miami-Dade County. (Apropo of nothing, the building was constructed by SAC Construction which was owned and operated by Stan Cohen. He was later murdered while asleep in bed in what became known as “The Stanley Cohen Homicide” and the resulting investigation/trials were without a doubt big news in Miami.)
Both sides file briefs, some cases also allow for oral argument (Connolly’s did). The case is usually heard by a panel of three of the DCA judges, not the entire bench. At the end of the day (figuratively not literally) the defendant either gets a written opinion or merely the “per curiam”.
Since the per curiam disposition of the case doesn’t set out the court’s reasoning for upholding the case, there is no issue to appeal to the Florida Supreme Court and that ends that appeal. (Even getting a written opinion is no guarantee of getting a Fla Sup Ct review. The Court has no obligation to hear non-death penalty appeals and is so overwhelmed with death penalty appeals it doesn’t agree to accept most other cases.)
The defendant may request a rehearing by the entire 3rd DCA bench (Connolly did) but that is a long shot (Connolly was denied I believe). Also, the initial appeal typically does not contain the defendant’s request for relief due to ineffective assistance of counsel. That comes after the initial appeal has unsuccessfully run it’s course. I do not know if Connolly’s initial appeal followed in this manner.
Now as for your, or anyone else’s, distaste for the use of per curiams to end an appeal- get in line. This is not an obscure topic in the criminal prosecution/defense world in Florida. Arguments are routinely made to compel written opinions in all cases but to no avail. The State of Florida in its wisdom (which is certainly not infinite) has been drastically slashing the amount of money it puts into the criminal justice system for years. The 3rd DCA routinely issues 10-15 written opinions every week (and 15- 20 PC’s). With no money for additional judges/staff there will be no change to the current system for the forseeable future.
Turning to the gun issue. I must admit that like you I am now retired (and have moved back to America, New Hampshire where we “Live Free or Die”, after spending 30 years in the South American country known as Miami-Dade County) so my explanation of the gun issue may be rusty but I think it is basically correct.
The problem facing the State in Connolly’s trial was that he had not been charged with first degree murder (which has no statute of limitations) but with second degree murder that at the time of the murder did have a SOL (that was obviously long run). Florida law however provides certain situations that increase the degree of a felony by one level and in doing so make that offense subject not to the original SOL but the new level SOL. In Connolly’s case he was charged with second degree murder (a life felony) “while armed with a firearm” therefore the SOL was for the upgraded Capital Felony (which has NO SOL) and not the SOL for second degree murder.
I did not attend the trial so I can’t definitively answer your question as to whether evidence was adduced that FBI S/A’s are required to be armed while on official business but I would be shocked if this evidence was not produced in some manner (ie even just introducing some FBI manual that states a regulation requiring same). This is not some bizarre point of law in Florida. It is an issue that is dealt with constantly. Low level pit prosecutors know to do this. The State prosecutor in Connolly’s case was Mike Van Zamft. He has been a public defender, prominent private criminal defense attorney and for the last 15 years or so a senior ASA assigned to the elite Racketeering Section of the Miami-Dade SAO.
Once that evidence is in, it can be argued. Some (or many) may disagree with the jury that found Connolly was armed during the offense but there was a specific jury instruction that required the jury to answer this question one way or the other and they found against Conolly.
As to your hypothetical, I don’t think it would have mattered if Martorano had strangled Callahan. The State’s theory of the case never put Callahan in Florida (at last something we can all agree on). The State attempted to show (and with the conviction and denied appeal did show at least in the eyes of the law)that over time Connolly had gone from an agent controlling some CI’s to becoming a member of the criminal group that they comprised (the feds called it “The Bulger Group” I think). Then acting as a member of that group he urged other members to have Callahan killed. He was charged not as a conspirator but a principal for his actions and the jury found he was armed with a firearm during some of these overt acts.
Again, I have all the respect in the world for Stan Blake. He was a fine private defense attorney before taking the bench and is rightly regarded as one of the best Circuit Court judges in Miami-Dade. Still, I think he was mistaken in making those remarks re the SOL. If the issue had been argued before him (his ruling that it was raised too late effectively ended the debate)I think he would have realized his error. One possible source of error is that besides raising the degree of felony one level, being armed AND IN SOME WAY USING a firearm during a criminal offense triggers draconian minimum mandatory sentencing guidelines. But these are really two separate issues.
Enough for today. Happy Thanksgiving to all. In a few days I’ll impose upon your hospitality again to explain why I disagree with your position that the Florida trial was somehow morally, if not legally, improper.
JHG –
Thanks. You put the situation into a better perspective especially when you give us an insight into the operation of the Florida appeals system. It’s Thanksgiving Eve so this will be short. I understand Connolly was indicted for first degree murder conspiracy, I don’t know how that affects your explanation. He was acquitted of that. I agree that a skilled prosecutor would not miss putting in some evidence of the gun but my take on the case, and I may be wrong, was that this was an afterthought request by the prosecution to instruct the jury as to a lesser included offense. I also spoke with an FBI agent who was interested in helping Connolly who told me that they had not asked for a rehearing before the full bench because if they lost they would be out of luck. I didn’t quite understand what he they were waiting for but I let it pass because he was just telling me what he heard.
I just don’t know enough about what actually went on during the trial with respect to the gun or when the lesser included offense was inserted into the trial. Your input in explaining the heavy case load and small staffing does explain the reason for the use of a per curiam disposition which lifts some of the fog over the matter. If the Connolly Florida trial had more to do with the present circumstances I’d attempt to read the legal documents and transcripts but for now my plate if full. Speaking of full plates, Happy Thanksgiving and thanks again for your important input.
As much as I respect Judge Blake, I believe he was mistaken when he said that the defendant had to possess the firearm actually used in the crime for the SOL to be extended. The jury instructions correctly required the jury only to find beyond a reasonable doubt that the defendant had possessed a firearm during the commission of the crime.
The State argument was that as an FBI S/A Connolly would have been armed during some of his actions that led to his conviction. Debateable? Certainly. But the jury found against him and so under Florida law there is/was no SOL on his charge.
Connolly did get an appeal. Briefs were filed by both sides. Oral arguments before the Court were held. The Third DCA then rejected his appeal w/o issuing an opinion (Per Curiam). Therefore under Florida law no appeal to the Florida Supreme Ct is allowed. Sounds harsh. But this occurs frequently in Florida and is not unusual. Every week many Florida appellees get this same news.
While it may be hard for Boston area residents to comprehend, this was not a big Miami area trial. There were a few Miami Herald articles but nothing like the mega-trials that go on in Miami on a regular basis.
JHG:
This is a fine comment. Thank you. I’ll incorporate your dissent into any further posts I make on this trial. I especially appreciate clarifying for me the significance of the gun. I could not quite figure it out until you noted it extended the statute of limitations.
After reading it and reflecting on it reminded me of the first civil jury trial I had as a young attorney. I was with this law firm for less than a month after clerking for about eighteen months and one of the partners dropped a four to six inch folder on my desk (our client’s name was Stephen Hopkins) and said the case was scheduled trial a in less than a week. It involved a real estate broker suing for a commission. I was able to get it together and tried it for a couple or more days in Middlesex. At the end, the Judge Taveres allowed plaintiff’s motion for a directed verdict jury against me. The reasons he gave I thought were wrong so I appealed. New counsel came in on the other side to handle the appeal. They discovered in going through the evidence that I never introduced evidence that Hopkins was duly licensed as a broker. (Plaintiff’s trail counsel and Judge Taveres missed that as I did.) Obviously, I lost on appeal.
You may be wondering why I mentioned Stephen Hopkins case.
I have a sense that no evidence was introduced that an FBI agent is required to carry his weapon at all times. Counsel may have argued it, but you cannot argue something unless a basis for the argument is part of the evidence. If there is no evidence, the jury cannot make such a finding.
Even had that been introduced, you can’t assume that a person follows the regulation. The jury had no basis for believing he was armed at any time during the commission of the crime. I also suggest that the possession of a weapon has to be at the time of the commission of the crime not at some earlier time when the felons may have planned their crime.
Judge Blake seems to me to be on solid ground stating that the gun the statute refers to has to be the one used in the crime. If not, had Martorano strangled Callahan then Connolly could still have been had the statute extended for murder with a gun even though Callahan was strangled? It would lead to some confusing law.
I assumed that the Connolly case was briefed and argued. I knew his appeal was rejected without a decision. I have a hard time accepting that a 40 year sentence is routinely decided without a written opinion justifying it. If that is the case, then Florida should rethink its appellate rules since for me it is far beyond harsh but borders more on being ripe for abuse in cases where there is legal error but the judges don’t like the defendant.
That it was not a big trial in Miami is not a reason for it to be swept away as if it was a misdemeanor appeal. I recognize you know the law and the tradition of the area must better than I do, since I know nothing about it, so I accept your conclusion nothing happened beyond the usual but suggest the usual should be reexamined.
That you and I can differ over the law and the facts is why the Third DCA’s refusal to issue an opinion is somewhat of an injustice.
Appreciate your comment very much. If you are in the sunny state I’m envious as we start getting ready for our cold, dark days of winter.
Yes, that’s where I got that appropriate quote- sorry I didn’t credit you with the re-quote in my comment. I really appreciate your blog and book and all I’ve learned. Far more than I’ll get from mass media… I wouldn’t be so quick to ‘blame’ the economy and the changing industry for the lack of in depth investigative reporting. Even with the financial challenges a ‘newspaper’ has in 2012, you’d think they could come up with a few bucks to dig into something, as you say, we haven’t seen in our history. This story is actually a story that could stave of the inevitable march towards irrelevance that the old school print media now faces if it ever wanted to truly investigate. I never realized that you could be tried for the same thing twice as John Connolly was. I don’t understand why no one else is asking these questions, beyond this blog and your excellent book, “Don’t Embarrass the Family”.
LB:
I got the quote from someone else on the web so no problem. Thanks for your kind words. I agree that the financial problems are only an excuse if they really had an interest in pursuing the matter but they don’t. If it were someone other than Connolly who the local papers had an unusual dislike for, maybe they would say something about it. The irony of Connolly’s situation is that in the late ’70s and early ’80s he was the local darling of the media. The real interesting part of Connolly’s story is how he was abandoned by the FBI. No one really stood up for him and letting him languish in prison for the rest of his life just doesn’t not only seem right but as if some force is operating behind the scene to keep him locked up. Thanks for you comments.
I’ll bet the FBI is very pleased to have you assume the mainstream medias reason for not picking up on stuff like this is ignorance.
As Malcolm X says, “The media’s the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power. Because they control the minds of the masses.”
That’s what the FBI is all about!
LB:
Interesting quote. I used it in my book talking about Billy Bulger. On one hand I have to agree with you. It would seem that this is so obvious to the media that it is purposefully ignoring it. The media is protecting the FBI and the FBI protects the media. Who knows how many compromising emails the FBI has captured that compromises the newspaper people. On the other hand, the ability of newspapers to do in depth reporting has diminished due to financial considerations as has the quality of the people it hires. I pointed out that once at Norfolk Superior Court there were three newspapers who had reporters stationed there every day. I do worry about the accretion of power by the FBI. I don’t think we’ve seen anything like this in our history. Thanks for the comment.
why do you think the mainstream media does not make this a cause, time, newsweek , new york times? i do not like john c but i was not aware this happened to him in fla. amazing
Doug:
I have to assume it is out of ignorance. I knew nothing about the outrageous happenings in his case until I started this blog because I did not pay attention to what was happening. The manner in which the Florida Appeals court acted should have raised eyebrows and caused some comment in the NY Times or other national newspaper but never did. If it were not Connolly who is so out of favor but someone more popular then there would have been some type of editorial comment.
“Justice succumbs when people sworn to do justice do otherwise.”
This is really the issue in my family’s case as well. If on the one hand, the US Prosecutors in USA v Bulger are now filing Motions that claim Bulger’s immunity issues should not be discoverable, or heard by the jury; then, on the other hand how can it do justice in my family’s complaint if our facts suggest that some kind of immunity was implied by US DOJ and FBI failure to expand USA v Rennert investigation into our complaint against John Iuele aka Whitey Bulger?
Jean:
The prosecution has argued that Whitey cannot bring the immunity issue to the jury. Judge Stearns has not accepted that argument and says that the issue can be heard by the jury. You are running up against a stone wall so I really don’t know how you can get around it.
Thanks for commenting.