Yesterday I said Judge Stearns got a little ahead of himself in declaring Whitey’s claim of immunity for murders to be committed in futuro will not be considered. I suggested he should not have done that without figuring out what it was that Whitey is claiming. I should have mentioned he has left the door open for Whitey to tell us about his deal
Judge Stearns pointed out he was confronted with “the paucity of information provided by defendant regarding his purported claim of immunity.” Reading the judge’s memorandum it is clear he is trying to figure out what exactly is claimed by Whitey whose lawyer J.W. Carney is saying to the judge “wait until trial and we’ll let you know.” Stearns says he won’t be doing his job if he does that. He says if Whitey has immunity then there will be no need for a trial; on the other hand if he doesn’t have it then a jury can’t say he does. It is up to a judge to decide this issue beforehand.
What Judge Stearns has decided is if Whitey claims AUSA Jeremiah O’Sullivan gave him prospective immunity to murder someone then that in and off itself will not stand because O’Sullivan had no power to do this. In a footnote he said: “it strains credulity to suggest that an Assistant United States Attorney would have had the authority decades ago to authorize the murder of American citizens, on American soil, for reasons wholly unrelated to national security concerns.” I suggest what the good judge is suggesting is that back at the time O’Sullivan is purported to have made his deal with Whitey things in America were different.
They really weren’t. The debate over the existence of kill lists is happening today because we are doing our killings more openly with drones. In prior days, we were more subtle about them. Subsequent to WWII we had a policy to use the CIA to assassinate people. In 1976 President Ford had to enter a secret executive order (Executive Order 11905) barring this practice. It does not appear the passage of time is relevant to the issue.
Decades ago or today, Judge Stearns is absolutely correct suggesting that if the power to kill exists at all it resides in the president and no one else and only with respect to the security of our nation. Unless the president puts his seal on any planned killing, such as he does on today’s kill list or the past CIA targets, no one else in the executive can authorize any person to kill another. Our troops do not go off on combat missions without the approval of our president. There is absolutely no way that Jeremiah O’Sullivan would have thought he had a similar authority. Obviously he never would have suggested to Whitey that he could go forth and commit murder.
The problem we have is we don’t know what Whitey was going to tell us. It’d be nice to know. There are some things O’Sullivan could authorize. Judge Stearns noted as much.
In his final footnote he said he really didn’t know if Whitey’s claim is “one of entrapment by estoppel (or public authority)” rather than one of immunity. If it is either of these, he notes they “are affirmative defenses to be tried by a jury.” But to do this Whitey has to give “appropriate notice of the defense to the government” and the court will determine if Whitey “has a cognizable and colorable basis for asserting it.” In other words, it’s time for Whitey to put up or shut up.
Which leads me to the real problem Whitey has. After upwards of ten books and five or more court decisions telling us of the murders he has done, there are few people who have heard of him who don’t believe he had committed some murders. Anytime Whitey will enter a courtroom there will be a presumption of guilt. Actually, it will be beyond that, there will be a substantial belief in his guilt.
Cloaked with that belief, if Whitey testified, as he now has to do before a judge, of a deal he had with Jeremiah O’Sullivan, a man who most believe served honorably as an assistant US attorney for many years, wherein he says O’Sullivan authorized him to murder people the judge will have great difficulty suppressing a smile indicating her disbelief. No judge would ever get to the point of trying to decide if the deal involved permission to murder people. No judge would believe the conversation ever happened.
Whitey’s only hope was that somehow a naive jury would believe such a preposterous event actually happened. That hope is gone. Judge Stearns said the issue must be decided by a judge noting she has an obligation to prevent “the potential for jury confusion and distraction” which after all this immunity assertion is.
Time is running short. There are few options left to Whitey. One is to testify about his immunity agreement and be subject to the government’s cross-examination. That’s no real choice because he can’t win and he’ll be giving the prosecutors the chance to bat him around before trial. He’s got to recognize he’ll soon be living in the same big house as former FBI Agent Robert Hanssen if his health holds out.
Matt, organized crime was taken down across the nation by the FBI. O’Sullivan and Morris had nothing to do with the take-downs in New York, Detroit, Cleveland, etc., nothing to do with the widely acknowledge take down of 26 major Mafia families nationwide. You speculate that but for Morris and O’Sullivan, Massachusetts locals would have taken down the Mafia. The locals didn’t take down the Mafia here or anywhere else across the country. The Feds did. It’s not tenable that two men, Morris and O’Sullivan, impeded all efforts of local law enforcement across Massachusetts and New England for decades. The fact is the locals were inept across the country for decades. Also, the Feds passed off a very successful Organize Strike Force program to the states in 2000, a program that produced far better results than anything done locally anywhere in the nation. The federal government has lost the war on poverty and the war on drugs (so far) but the war on the Mafia and other major organized criminal enterprises succeeded. Yes, crime has not been eradicated, but thousands of organized crime figures were incarcerated by the efforts of the FBI.
Another issue; a lengthy rebuttal:
My numbers do add up. 1. I’ve seen charts showing 500 arrests per year (on average) of organized crime figures over the last 30 years. 500 x 30 years equal 1,500 (close enough!). (Some professor on Syracuse’s website displays them. 2. If you read my post as saying “Since the inception of the Criminal Informant program which began in 1978.” you’ll agree I’m right. Moreover, you’re quibbling about semantics. The point is the FBI arrested many thousands of organized crime figures in the last few decades. The FBI’s record is exemplary in that regard. Do you doubt that since 1980 the FBI has arrested thousands of organized crime figures? Do you doubt that informants play a major role in those successes? Do you doubt that the vast majority of FBI agents are honest? Those are the main general points I’m making. It doesn’t help to engage in hairsplitting.
Here’s a clarification, to clear up any confusion about the terms TE, CI and informant. The following quote is from “The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines(Redacted;) Special Report September 2005 Office of the Inspector General .”
“Chapter Three: The Attorney General’s Guidelines Regarding the Use of Confidential Informants”
“Since the inception of the FBI in 1908, informants have played major roles in the investigation and prosecution of a wide variety of federal crimes. The FBI’s Top Echelon Criminal Informant Program was established in 1961 when FBI Director J. Edgar Hoover instructed all Special Agents in Charge (SACs) to “develop particularly qualified, live sources within the upper echelon of the organized hoodlum element who will be capable of furnishing the quality information” needed to attack organized crime. In 1978, the FBI replaced that program with the Criminal Informant Program. Its mission is to develop a cadre of informants who can assist the FBI’s investigation of federal crimes and criminal enterprises. Informants have become integral to the success of many FBI investigations of organized crime, public corruption, the drug trade, counterterrorism, and other initiatives.”
And, “In a June 1978 article, Director William Webster stated: Not many people know very much about informants: and to many people, it’s a queasy area. People are not comfortable with informants. There is a tradition against snitching in this country. However, the informant is THE with a capital “T” THE most effective tool in law enforcement today – state, local, or federal. We must accept that and deal with it.” Current FBI director Mueller recently ratified those sentiments about the critical importance of informants in law enforcement.
This report also acknowledged “Serious FBI wrongdoing in dealing with informants.” The report also showed widespread non-compliance with FBI guidelines regarding the handling and paperwork processing of informants, nationwide!
Bill:
I never suggested Morris and O’Sullivan did other than compromise the MA state police Lancaster Street operation that had the potential to take down the Boston Mafia group and the Winter Hill gang including Whitey and Flemmi.
The local and state police had a good impact on taking down the Mafia. I know one of the persons I indicted and incarcerated was squeezed by the feds in Boston based on the record I gave him and was a major witness against Whitey and others; and another received big time because of the rap sheet I gave him. You may recall the MA state police worked with the FBI after 1980 and participated in and contributed significantly to its operations to take down the Mafia. Local police, such as Quincy’s Dick Bergeron also provided substantial assistance to the FBI and DEA as did Norwood police. We don’t know what other state and local police did but it was the state police of New York that discovered the Apalachin meeting that brought the FBI to recognize the Mafia’s existence. I don’t understand why you call them inept when you really do not know what impact they may have had. From my little perch I see that we did quite a bit.
You keep changing the subject on the numbers.I challenged your suggestion that the TEI program has resulted in 17,000 gangsters in prison. As I noted before, the number of organized crime people (whatever that word means) put in prison is not the same as the number put in prison as a result of the TEI program.
The ability of the FBI to change history has only been equaled in the last 100 years by the Communists. The September 2005 Special Report is typical revisionist history. Hoover did not establish the Top Echelon Informant Program in 1961. Hoover might have sent out a memo telling his agents to “develop particularly qualified, live sources within the upper echelon of the organized hoodlum element who will be capable of furnishing the quality information” but that was not the start of the program. At the beginning of 1965 the FBI Manual of Instructions included for the first time a new class of informants called Top Echelon. They were defined as: “Members of the underworld and those who closely associate with them, [including] Madams, prostitutes, pimps, fences, con men, hijackers, robbers, burglars, hoodlums and gangsters and those persons associated with such persons.” The idea that true definition did not come until later in the 1960s when LBJ stopped the FBI from doing its electronic interceptions without court orders. It was then that Hoover & Company had to loosen up its requirements and let the agents work top level criminals. In the FBI filed Top Echelon Informants and normal informants were two separate groups. The FBI never replaced the Top Echelon Informant program in 1978 since it continued throughout the years Connolly was an FBI agent (1990) and the last I heard was it was still in existence in 2011 (Mmark Rossetti).
I’ve never suggested that informants are not valuable tools if used correctly as I did for many years with the state police and the local police departments. I was very comfortable with them. We used them quite effectively and gained good results. But the Top Echelon Informant program was and is a bad idea. I never authorized informants to commit crimes. protected them, or advised them of wire taps. That seemed to have been routine for the FBI.
Matt, your points are well made. By “inept” I meant not incompetent but incapable: lacking in aptitude. I know the State Cops did great work but lacked resources. Locals, without the Feds, were not capable of bringing down the Mafia. I agree the joint State-Fed programs were effective. Statistical categories of criminal activity include such things as robberies, rapes, murders, drugs, etc.; I’ve used DEA data and presented papers based on that data and similar data. For example, at the 25th Anniversary of the American Pharmaceutical Association in Orlando (@1975), the paper was entitled, “Licit and Illicit Costs of Psychotropic Substances.” Hal Ginsburg, a young B.U. trained psychiatrist helped me with that paper. At NIDA, we were always aware of data linking drugs and crimes; drug addiction is not a victimless crime. Today, there is a separate category for prosecutions of “organized crime.” It’s true that not all criminals are gangsters and not all gunmen are members of organized crime, but generally the term mobsters, gangsters and organized crime are used interchangeably. Generally a gangster is considered a member of organized crime: Mafia, Crips, Russian Mafia, N.Y.’s Westies. The data I’ve seen does relate to prosecutions for organized crime. I used the vernacular “gangster.”
One point we continue to disagree on is the use of informants. Every made-member of organized crime is an alleged killer. Every heroin distributor has blood on his hands. People routinely die from heroin overdoses. If we don’t use suspected “murderers” or accessories to murder or sometimes even known murderers, we won’t crack the nut.
End of story for today. Another foot of snow. Still snowing. Time to shovel.
Bill:
I heard about the snow. Using informants is fine; using informants who go on killing people is not.
This is the first time I have commented on this blog, though I have checked in to read up from time to time. Thank you, Mr. Connolly, for putting so much thought and energy into this and informing this with your lived experiences and keen eye. I wanted to point out something which I have not seen mentioned here, and which I wonder how it would fit in with either Carney’s theory or with Judge Stearns’ dismissal of it, which is the testimony of Jeremiah O’Sullivan himself when he appeared before the House Committee on Government Reform, prior to his death.
On this day — December 5, 2002 — Jeremiah O’Sullivan stated the following in his opening remarks (See H.R. 107-56, Investigation of Allegations of Law Enforcement Misconduct in New England, Vol. 3, Retrieved from http://www.gpo.gov/fdsys/pkg/CHRG-107hhrg84604/html/CHRG-107hhrg84604.htm):
————————————————-
O’SULLIVAN TESTIMON EXCERPT: DECEMBER 5, 2002
LOCATION: J.W. MCCORMACK POST OFFICE AND U.S. COURTHOUSE, BOSTON, MA
“Since these matters came to public attention in approximately 1998, I have been the subject of testimony, press comment, and mention in books. Some of this has been wildly inaccurate, reflecting, for example, a level of journalism that has failed even to get my marital status correct.
Some of this has been simply untrue, as was, for example,
recent testimony of a now-disgraced FBI agent that I did not
indict Bulger and Flemmi in the Race Fix Case in response to
FBI agents’ request to spare their informants. I welcome this
opportunity to set the record straight.
I state categorically and unequivocally that, although I
was made aware of the status of Bulger and Flemmi as FBI
informants in the late 1970’s, I never authorized them to
commit any crimes and have no knowledge of any such
authorization.
Nor did I ever give them any type of immunity from
prosecution. Nor did I ever take any steps to protect them from
investigation or prosecution. As a prosecutor, my goal was to
prosecute criminal activity vigorously, but always following
the highest ethical and moral standards.”
——————————————
I am unaware of any public testimony to this effect subsequent to this December 5, 2002 appearance so this very well be O’Sullivan’s last word into this matter. Assuming that Attorney Carney is, indeed, aware of this testimony, do you believe that there could there be an alternative theory of immunity upon which these court filings may be based?
Curiously yours,
Jay
Jay:
Thanks for commenting and welcome to the discussion. O’Sullivan did make the statement you set out and I believe that was one of the few times that he ever spoke publicly about the matter and may very well have been the last time. O’Sullivan died in 2009.
As a prosecutor he was well respected. In 1997 or 1998 he suffered a heart attack and I believe a serious stroke. It took him years to recover and he suggested at the time he was testifying that he had still not fully recovered.
After he made his statement, he underwent questioning by the Committee. His answers were a bit confusing. He admitted he let Whitey and Stevie off the hook in the race fixing indictment but said he didn’t do it because Agents Connolly and Morris asked him to do so but because he didn’t have enough corroborating evidence. It was pointed out that the same applied to at least one other. He then said he didn’t want any more defendants in court that the number (21 or so) he had already included in the indictment. When that didn’t seem to fit given the status of Whitey and Stevie he went back to the lack of corroboration. Counsel for the Committee, Wilson, then read to him a part of a memo he filed in DC that showed he had the corroboration he said he lacked. He replied: “It must have been at the time I wrote it. It was in 1979. I just don’t have a clear memory of the facts today so you got me, Mr. Wilson.”
To be fair to O’Sullivan he did his best trying to recollect back to the 70s and 80s after having had the medical problems that disabled him to a certain extent. J.W. Carney knows of the statement and the hearing and he is suggesting that what O’Sullivan said in his opening statement is contrary to the statements he made before the Committee so it cannot be relied upon.
For instance where O’Sullivan states: “Nor did I ever take any steps to protect them from investigation or prosecution . . . ” we know that is untrue because that is exactly what he did in the Race Fixing case.
The only mystery left is what Whitey told Carney his conversation or conversations with O’Sullivan were. Right now it doesn’t matter much because Judge Stearns has just about said no matter what they were they didn’t grant him prospective immunity, and I assume Judge Stearns probably agrees with me that no such conversation ever occurred between Whitey and O’Sullivan.
Matt, I posted yesterday that 17,000 gangsters were prosecuted by the FEDs and I will try to find that professor, from Penn or Princeton (across the river from Philadelphia) or some other “presitigious university” in Pennsylvania who compiled that data. I did not make it up. In fact, I read it to someone else who remembers it.
For today, I offer this quote: “The Mob in America:The Mafia in America: Traditional Organized Crime in Transition”
An Overview of Current Conditions
By Richard C. Lindberg
Copyright © 2002
“Significant federal prosecutions in the 1980s and 1990s have crippled the power of the 26 Mafia “families” in the U.S. The “old-time” bosses governing every American city where there has been a Mafia presence since before the turn of the last century are either imprisoned, dead, or in exile as a result of sweeping Racketeer Influenced and Corrupt Organizations (R.I.C.O.) legislation, and the combined efforts of the eighteen regional “strike forces” established between January 1967 and April 1971 under the auspices of the of the Organized Crime and racketeering Section within the criminal division of the U.S. Justice Department. In 1989, U.S. Attorney General Dick Thornburgh bolstered the U.S. Attorney’s organized crime investigative resources by merging the regional strike forces with local offices.
“The Clinton administration has continued the successful initiatives against organized crime begun by President Ronald Reagan in 1983, when he convened a special Commission on Organized Crime, spotlighting money laundering, labor racketeering, and narcotics trafficking. In 1986,after three years of investigation and follow-up, the heads of three of the five crime families of New York were convicted of running the Mafia as a continuing criminal enterprise controlled by a ruling national commission. By 1989 the government had already imprisoned some 1,200 Mafia brigands from New York to California.” Add to the 1,200 Mafia, the Irish gangsters, Jewishs gangsters, Polish gangsters, Latino gangsters, Union gangsters and narcotics gangsters (of every ethnic and racial group), and I think you’ll conclude that 17,000 gangsters prosecuted from the 1980s through the 1990s is not a far fetched figure.
I’ve also read today on the Internet that current FBI director Mueller strongly favors continuation of the Criminal Informants (CI) program. He calls it a necessity and the most effective tool they have in their toolbox. As you know, the FBI officially denies any informants are given a license to kill.
Bill:
You wrote a professor said “since its inception, the TEI program has put 17,000 (seventeen thousand) gangsters in jail.”
Now you write: “”By 1989 the government had already imprisoned some 1,200 Mafia brigands from New York to California.” Add to the 1,200 Mafia, the Irish gangsters, Jewishs gangsters, Polish gangsters, Latino gangsters, Union gangsters and narcotics gangsters (of every ethnic and racial group), and I think you’ll conclude that 17,000 gangsters prosecuted from the 1980s through the 1990s is not a far fetched figure.”
The two statements don’t work together. One you talk about the TEI program and the other about every gangster whose ever been arrested in America. Even then your figures don’t add up.
It wasn’t the TEIs that did it but the RICO statute of 1970 that moved things along. You really can’t talk about the TEI program because it was secret for most of its existence as well it should be because it is an abomination when you have people you know as murderers working on your team and protecting them. What else is Mueller supposed to do but support the use of informants. I understand you need them but you don’t need an obviously corrupt program like the TEI program. The skillful FBI agents who worked hard could have done as good a job or better using traditional techniques without going to TEIs. The Massachusetts State Police would have taken down Whitey, Flemmi and the Boston Mafia without any informants at all had O’Sullivan and Morris not got in their way.
The Strike Forces were so successful that in 2000 they were all disbanded. Organized crime in America no longer existed.
Quality post. But you and Stearns are mistaken about the president being the only official to authorize a killing. You are forgetting Plan R. 2. If Carney were to have a fair jury and an impartial judge he could prevail on many of these counts. The jury wouldn’t have to be naïve to reject the governments case. The whole sordid mess may repel a jury. What if Carney’s defense is that WB had a special relationship with the federal government that began when he took LSD from the CIA ( shortening his prison sentence)thus causing permanent damage, impacting his free will and preventing the formation of the needed mens rea to break the law. (he would lack the capacity to commit crime). This deal was extended by the Strike Force for the duration of his life. This arrangement would be in conformity with the Common Law Rule against Perpetuities. As long as he acted as a conduit it stayed in effect. Thus he was immune from prosecution. What if WB married a congresswoman? Would Wyshak then ask for probation?
Neal:
You are right the Whitey could talk about Plan R 2 but if he did then they’d have to put into effect Plan 2 EZ which would cause the ultimate turmoil.
I agree that if Carney could get a non-rigged trial the jury would be repulsed at everything and give Whitey a pass figuring the worst guys are the ones who got the deal. Which makes me wonder why Carney has not filed for a change of venue. If there is anyone in Eastern Massachusetts who says he or she has not heard of Whitey and his reputation then the person is probably lying or is a plant, like in potted plant. Carney’s only reason for not doing it is Whitey likes where he is and he knows if he moves he ain’t coming back no more.
No doubt the LSD impacted Whitey but if he’s using that as a defense which he isn’t he’d have to disclose it. Whitey had enough mens rea to know it was time to flee but not enough to know that staying in one place for 16 years would eventually prove fatal. I guess at his age he was just too tired to take the enormous armory with him to a new location. What was he doing with all the firepower anyway?
You’re right about the Rule Against Perpetuities. I originally thought that would be a good approach to take — Slewzewski used to talk a lot about it — but as I recall you have to bring it within 21 years of the last life in being you killed which would have put Whitey just over the ragged edge.
Whitey was almost married to a would be Congresswoman Louise Day. A hick-up developed in their relationship. All the media people have said that Father Robert Drinan who became a congressman was part of Whitey’s group. Would that help him with Wyshak?
Matt
Wasn’t it O’Sullivan that gave an “everything’s OK here” to the Senator Bulger/Finerty partnership re the 50 State Street matter? Must have been quite helpful.
Lee:
There’s a lot about 75 State Street the public has not been told about. Most have learned about it from the Globe and Howie Carr. The federal government probed that matter from sometime in 1986 after Harold Brown was indicted. Around the beginning of 1989 the U.S. Attorney’s office closed out the investigation. Frank McNamara was the US Attorney at the time. Ralph Gants the AUSA in charge of the political corruption unit and now a justice on the Massachusetts Supreme Judicial court who according to the Globe’s Frank Philips “has built up an independent reputatio’ for prosecuting politicians” recommended the case be closed. The Globe was upset. It after all had been blaring about that case for months. After McNamara resigned, Jeremiah O’Sullivan was appointed as acting US Attorney. The Globe demanded that O’Sullivan do it again. Aside from that the Department of Justice was also conducting an investigation of it. O’Sullivan assigned it to two of his top assistants. He had little to do with it other than report the results of his assistants. They, like Gants, found no criminality. Even after that, Scott Harshbarger who was elected Massachusetts Attorney General in part because he pledged to do something about 75 State Street was unable to find anything wrong or corrupt. O’Sullivan’s role in it was minimal but it serves the purpose of the book writers to make it more than it was. Professor Dershowitz of Harvard fame has even said that O’Sullivan was Whitey’s handler. Things aren’t what they appear in the media when you look closely at them.
Matt, As I recall a Committee of Congress also re-investigated 75 State Street and found no wrongdoing. So, you have two federal, one state and one Congressional investigation and no wrongdoing. Still, the Globe, O’Neil, Lehr persist in defamation.
Bill:
1. 75 State Street was investigated for over two and a half years by the US Attorney’s office. A present justice of the MA Supreme Judicial Court was in charge of the investigation, a man of high repute, made the decision to closed it out. The Globe squawked.
2. The DOJ said it would look into the matter to see if it was done right. Apparently it did. It let it stand. The Globe squawked louder.
3. Jeremiah O’Sullivan assigned his top two assistant to examine it. (He had no input into it despite what you may have read.) They found no wrongdoing or corruption so it was closed a third time. The Globe was running around with it’s head cut off.
4. Scott Harshbarger ran for AG saying he would do what the Globe wanted and investigate it. He beat James Shannon because of the Globe’s support. He investigated it again and came up with nothing. The Globe put its head back on and continued to squawk to this day.
5. A Congressional Committee examined it as part of its puerile hearings that went from an examination of the alleged abuses in the FBI to the imagined abused caused by Billy Bulger. They came up with nothing.
O’Neill, Lehr, Carr and others have no choice but to go on. They can’t go back again.