U.S. v. Flaherty – Part 6 of 10: When The Boston U.S. Attorney Comes In the Door Justice Flies Out the Window

2015 08 21_3000Tim Flaherty whose background I set out in Part 1 of this series is one of the better defense lawyers in the state. He has tried some hard cases and has achieved good success. He is a busy lawyer who has given each client he represented the type of advocacy one deserved. He is ethically sound, has never been in trouble, and an otherwise outstanding member of the Massachusetts Bar.

That is what makes the federal case brought against him by Fred Wyshak and the attorneys in his unit so inexplicable, They are going after a good lawyer, a good guy, a father of a 5-year-old kid and trying to strip him of his livelihood and probably put him in prison over what for all appearances is a nonsense if not fabricated matter. Why, I ask, are they so intent on doing this in such a shabby way.

Shabby? Yes, let me point out the ways.

The case ostensibly arises because two days before Christmas a state cop calls Wyshak’s unit and tells them of the case they are investigating which is one of an attorney [Flaherty] who is trying to buy off a witness. They are not investigating anything to do with the civil rights case.

First, in my experience, state cops do not make cold call the U.S. attorney’s office with cases. I never heard of such a thing happening. The matter in which the alleged intimidation related to was being prosecuted in the state by the Middlesex District Attorney. I would expect that the normal response by an assistant U.S. attorney is to direct the state cop to the people he works for, the Middlesex DA.

The federal prosecutors and state prosecutors in my time deferred to each other. If there is going to be a prosecution out of a state incident they confer over where the best result would be attained. Attorney Martin Weinberg noted during his oral argument that “the federal government does not walk in as a second sovereign without compelling reasons.” 

Remember John Salvi who killed two women at the Brookline abortion clinics? That was a clear federal civil rights case. The U.S. attorney wanted to intervene in it. He wanted the FBI to take it over. He was told that the state was going to prosecute the murders. He put the federal case on hold. That is the way things are done. To have the AUSAs jump into an ongoing state prosecution without touching base with the district attorney baring extraordinary circumstance is just not done.

This case did not involve a significant matter that the state could not handle. There was no reason or need for any federal attorney to intervene.  Had someone been killed, badly beaten or some other atrocious situation happened and the district attorney’s office was deemed not up to the task perhaps it would happen but even then not before extensive consultation. Bottom line is that traditionally federal prosecutors do not open a case based on the same facts if it is already being prosecuted in state court.

Everything about the civil rights case shouted out it involved no more than a stupid dispute over a “fender bender” instituted by the alleged victim. There was no indication it was not being well handled. Why would the federal prosecutors skip every normal procedure and get involved? Why would a case involving a civil rights investigation be immediately opened up when considering the number of incidents like this that may have occurred in the state there has only been one civil rights case opened by the Boston U.S. attorney in the last three years?

Not only that as earlier mentioned the AUSAs alleged they immediately made the state cops into a federal investigators. There is no paperwork showing this was done. They did that, if they did, so that he could record Flaherty which he could not do under state law.  The state cop who is doing the recordings in his report makes no mention of this. There were no federal agents present at the time. The FBI had no idea what was occurring. It was a federal investigation by federal prosecutors instantaneous instituted over a trivial event being conducted with state police who were magically made into federal investigators.

The words of Tevye ring in my ears: “Unheard of, absurd, unthinkable.”

Now get this. When Flaherty tells the victim that he should accept the $2,500 as an “accord and satisfaction” (he uses those words) which is permissible under state law the federal prosecutors say this becomes a federal violation because unknown to anyone except them the state cop is a federal officer and Flaherty violated the federal law. That is he corruptly had the intent to hinder, delay and prevent the victim from communicating to that federal law enforcement officer who was investigating a civil rights offense even thought the state cop was in truth investigating a state offense of intimidation of a witness and was not investigating a civil rights offense.

The icing on the case is that the victim was in continuing contact with the state cop and when the FBI became involved he stayed in contact with the FBI and the AUSA throughout the investigation. There was nothing Flaherty did or could have done to hinder, delay or prevent it since it was ongoing.

This is the made up crime and unusual twisted circumstances that the federal prosecutors want a good lawyer to lose his livelihood over. This is the type of justice that is being dispensed out of the Boston U.S. Attorney’s office.


  1. Think on the bright side…

    Flaherty could of been tried in India

    ndian village council orders rape of sisters after brother runs off with …
    NEWS.com.au-Aug 29, 2015
    AN INDIAN village has ordered two young sisters be paraded naked through the town and then raped — all as punishment for their brother


  2. Uh uh….
    Corruption by topic – Judiciary – Transparency International
    http://www.transparency.org › What we do › Corruption by topic
    An effective judiciary guarantees fairness in legal processes. It’s a powerful weapon against corruption. But people’s experiences in court are often far from fair.
    Understanding how and why our judges become corrupt
    Explains the causes of judicial corruption and proposes legislation mandating that voice recordings from public trials be posted on the Internet.

    • MS:

      We can’t even get cameras or tape recorders into the federal courts how do yuu eer go to transparency when the so-called open hearings are really closed to almost all.

      • Basketball player Bill Russell was overheard saying
        while a high schiol freshman ‘ what you talking about?
        We can’t even use the same bathrooms as whites here in West Monroe Louisiana, and y’all talking about voting rights’?

        Will people remember Matt Connolly for his blog
        or for the leadership role he took in creating a civilian
        Review board?

        In other news



        Justice Delayed: Ninth Circuit Sends EFF’s NSL Cases Back for Consideration Under USA FREEDOM
        Often overlooked in discussions of the USA FREEDOM Act passed in June are the changes made to the National Security Letter (NSL) statute. The law addresses some of the more obvious problems with NSLs but fails, by a long shot, to bring them up to the standard required by the U.S. Constitution. Most critically, USA FREEDOM did not fix the problem of overbroad, potentially eternal gag orders or the fact that the NSL statute relegates the court to little more than a rubber stamp.

        Sadly, in a ruling made public last week, the U.S. Court of Appeals for the Ninth Circuit in San Francisco used these minimal USA FREEDOM Act changes as cause for another delay in considering the constitutionality of NSLs in two of EFF’s flagship cases.

        The result is that the gag orders, which have already muzzled our clients for several years, will continue into the foreseeable future. The gags have prevented our clients from participating fully in the debate around USA FREEDOM and will continue to prevent them from participating in the ongoing public debate about national security surveillance in general and NSLs in particular with the power and authority that comes from speaking as a recipient.

        While we’re extremely disappointed, we will continue to push forward to get the gags lifted, allow our heroic clients to speak freely, and seek to have the NSL statute declared unconstitutional.

        What are NSLs and How Did USA FREEDOM (Not) Change Them?

        The NSL statutes allow the government, based only on the FBI’s authority, to issue a secret letter to communications service providers, including telephone and Internet services. The letter requires providers to turn over subscriber and other basic non-content information about their customers. No judge is involved.

        If that weren’t bad enough, NSLs also allow the government to place a gag on the recipient providers, preventing them from telling their affected customers about the request, but also preventing them from telling the public that they’ve even received a letter. This prior restraint violates the First Amendment.

        EFF’s Heroic, Unnamed Clients

        EFF currently represents two service providers in First Amendment challenges to the statutes, which raise questions of the substance of the laws and also the incredibly overbroad gag provisions. One of our clients has now been gagged since 2011—over 4 years—from discussing even the fact that it received a letter; the other has been gagged for over 2 years.

        EFF scored a groundbreaking victory against the unconstitutional NSLs in 2013. A federal district court here in San Francisco held that the NSL statutes were unconstitutional on several grounds, chiefly that they violate the First Amendment. The injunction was stayed pending appeal, and it seemed that the decision stood a good chance of being upheld after the appellate argument in October 2014 (audio).

        But then the executive branch asked Congress to include some superficial changes in USA FREEDOM. These changes basically codify parts of a procedure the FBI was already using after a previous ruling in New York, while not bringing its actual practices to the level required by the First Amendment.

        What Didn’t USA FREEDOM Do

        USA FREEDOM did very little to the core of these statutes. As we argued to the Ninth Circuit after USA FREEDOM passed, the law still:

        · Creates a prior restraint on our clients that doesn’t follow the procedural protections created by the seminal Supreme Court case Freedman v. Maryland. Under Freedman, the First Amendment requires the government to seek prior judicial approval for a gag and requires a “prompt” decision by the court, a standard that has plainly been violated here by the years-long gag on our clients. While the law does require a so-called “reciprocal notice” practice—one that the government had already voluntarily adopted—even that procedure fails to meet constitutional standards. It still doesn’t require the government to seek judicial review first or limit the time frame for review. It also still gives the court very little leeway to review the government’s decision to issue a gag.

        · Allows the government to gag recipients based upon the mere assertion that a harm “may result,” a boundless, subjective term rather than a showing that the gag is objectively and definitely “necessary” to prevent a harm.

        · Authorizes overbroad, open-ended gags, preventing even a general statement that the recipient has received an NSL. Even under USA Freedom, there is no specific provision causing the gag to expire when any threat has ended, instead punting to the government to create new procedures for review “at appropriate intervals,” a term entirely defined by the government.

        · Still allows the government to self-issue NSLs with no prior judicial review, in violation of the First and Fifth Amendments.

        Even though EFF was neutral on USA FREEDOM, and even supported earlier versions, we were clear that the law did not do enough to reform the intelligence community. NSLs were one of the ways that the law fell short. Even so, the Ninth Circuit’s decision to delay a final decision in these cases is especially disappointing to us and to our clients. After years of intense litigation, our clients remain under an unconstitutional gag and, in a turn of events only Kafka could love, they were unable to participate in a meaningful way in the Congressional debate about whether they should be gagged. Their ongoing inability to speak despite congressional action is a testament to the necessity of applying the Constitution and ensuring speedy judicial review. Speedy or not, we’ll fight on.

  3. I think Flaherty ‘ s pedigree (his father) helps to explain why he’s jammed up with the feds . I’d like to know how often attorneys make these kind of payments in Massachusetts. Is it commonplace? Also, why did Flaherty feel the need to pay this guy in cash if everything was on the up and up? Having said all this, I agree: This is no federal case.

    • Dan:

      I don’t go for the father explanation. He lost his speaker ship when he decided to plead guilty to some tax charges which was a bad decision from my point of view. You have to go down fighting since these guys love to get pleas.
      I honestly believe that these AUSAs in Wyshak’s Unit have nothing to do to justify their time or salaries. They are scraping around for anything. This low level case somehow came to them – I’m not buying their story – and it gave them something to do. Wyshak has been in charge of the unit for a year and a half – he has several lawyers working under him – all that they have produced is this and Bob Fitzpatrick the FBI guy for perjury. The problem with them is they don’t know how to make cases; added to that they have horrible judgment as shown by Flaherty’s proscution.

      As far as the accord and satisfactions they are common in situation when people don’t want to go through the aggravation of court proceedings. It is probably best for an attorney to deal with another attorney so that things like what happened to Flaherty won’t be questioned. I had a case where a guy was beat up in Boston Common by three other guys over a neighborhood beef and doing the fight they grabbed his watch. They were charged with armed robbery. I represented the three of them and the victim I also knew. I worked out a deal where the victim would take some money for his injuries and medical expenses and the case would be dismissed. When the three paid up (and they grumbled about it because they were too dumb to realize the big break they were getting) I gave the money to the victim. We went to court and told the judge what happened and he dismissed it. I suppose if Wyshak was around I’d have been indicted.
      It is common – Flaherty’s fault was he was trying to strike while the matter was hot and put it behind him. He probably could have been more formal about it but he’s a busy lawyer and sometimes likes to cut to the core.
      As far as cash goes, Flaherty expected the guy would sign the accord and satisfaction and he probably knew from experience that would require cash on the barrel head. The thing that is overlooked is Flahety had nothing to gain from any of this other than serving his client’s interest. I assume he got a retainer from him which was for the case. He’d probably get more if it went to trial. The best interests of his client because he has a record was to get rid of the case and that is what he tried to do. If he was trying to get something for himself he would have put the 2,500 in his pocket, told his client the victim would not take it, and then move on with the case.

  4. Could Flaherty’s lawyer file a case in the SJC seeking an advisory opinion as to how and under what circumstances an AUSA can make a State employee a Federal agent? What steps would have to be taken? What written procedure is required? What are the limits? In what time frame does the act have to occur? Can an AUSA negate Massachusetts law?

    • If you get the right judge you can negate Mass Law

      Retired Arizona Judge Reveals Corruption in Legal System


      Mar 13, 2015 – Justice John F. Molloy was an attorney in Arizona who went on to serve as a judge on the Arizona Superior Court bench. He is probably best …

      Also see

      Judges are not above the law.
      When you think of a “corrupt” judge, you may think of one who trades rulings for … Among other things, a dishonest judge can ignore evidence, twist rules and …

      • MS:

        The judges make the law and most just like to go along. CAn’t blame them – they get the same pay whether they work hard or not.

    • NC:

      1. The SJC can do whatever but it does not affect what the federal government does.
      2. The federal prosecutors say they can turn a person into a federal employee and that person is not bound by state law. There does not have to be any formality involving this. Perhaps, they do not even have to tell the person or persons as long as they believe it themselves. Not only does the person who seeks the federal blessing become a federal agent but all those who associate with him. The sergeant who made the call and all the other state cops who did the interception were federal agents and I’m sure none of them knew it.
      3. It is all part of the history of America. We have two sovereigns but one is superior to another and that is the one that decides it is superior which is the federal forces as was shown during the days of George Wallace. The big falsehood here is that there was a federal investigation ongoing but that is absurd but there are no adults among the judiciary who will look the facts in the face and call a spade a spade.

  5. There was a lot of walla walla, wink, know what I mean
    going on around the Green Mountain coffee dispenser
    this morning at Flying Pond variety, home of the MTC

    Elbows Wychulis updated the gathering of Legal
    Warriors about the status of HR 50 which would
    create a volunteer civilian review board to create
    and enforce atandards of performance for the
    local, county,state and federal law enforcement
    operating in Maine.
    The good news is the board would be voluteer
    and have subpoena powers.
    Elbows then devoted the next 30 minutes to
    defining frivolous litigation and why it does
    not apply to prosecutors.

    In other news

    Fredericksburg.com – Ex-FBI man gets 7 years for child sex – Police …
    Aug 20, 2011 – Former FBI analyst sentenced in child sex case. BY BILL … Anthony John Lesko, 44, entered an Alford plea yesterday in. Spotsylvania Circuit …

    • You may want to review what happened in NH when some State Reps tried to get civilian review and/or oversight….I believe all their efforts were ruled unconstitutional…

      • In the mid 1970’s I helped set up the organizational model and incorporated the non profit L.A.W. (Lay Advocates at Work)

        The group focused on the problems of corruption
        In the Maine Judicial System by creating the
        Maine Board of Overseers.

        The group was rewarded for their efforts
        by the local police and FBI agents burning
        down the homes of Joan Brown and Tom Dunn.
        The 1st and 2nd Presidents of L.A.W.




        Bill .Seeks .New .Boon .To Air Air Complaints . – Google News

        to a bill introduced the 108th Legislature by former Rep. illiam Garsoe, which assed … of the Maine Court. instead of the current nine-member oard of Overseers, … for the group were Identified as Joan Brown of Biddeford Pool, Thomas Dunn of …

        Also see

        Legal Watchdog Advocates To Meet In Portland Jan. 10 .


        Jan 10, 1976 – A group aimed at curbing malpractice in the legal profession plans to … the incorporated group is headed by Mrs. Joan Brown of Biddeford Pool …

        Also see

        Biddeford-Saco Journal from Biddeford, Maine · Page 3
        Jan 26, 1976 – Biddeford-Saco Journal (Biddeford, Maine), Monday, January 26, 1976, Page 3. … ACTION AGAINST OFFENDNG LAWYERS, CONTACT: L. A. W. INC. (LAY ADVOCATES at WORK) JOAN BROWN BIDDEFORD POOL, ME.

  6. Jean,

    “…it’s more politics than law that is blindfolding Lady Liberty…”

    You just said it all in a nutshell.

    Cherry-pick the cases, use back-room channels to circumvent normal procedures, manufacture evidence, create spontaneous retroactive jurisdiction……
    ….sounds like just another day at the office down there…………

  7. Matt, I have looked up definition of “compelling reason”, and case law shows a very high bar for the second sovereign to take jurisdiction…I have been trying to get the USDOJ to take jurisdiction over my complaints to include being digitally disappeared as a U.S. citizen in SSA and U.S. dept of State and Ordered legally not competent by NH for years, and with all the facts I have provided I don’t seem to be able to reach the high bar…the facts in this case as you have presented them make me think it’s more politics than law that is blindfolding Lady Liberty…

    • Time to create a College to train and gradute Judges, eh?

      Also see

      How To Deal With A Bad Judge – Caught.net
      This page reveals many ways of dealing with a bad judge. … Identify And Publicly Expose Biased, Prejudiced And Corrupt Judges! Early identification of a Bad …

      This just in from the whisper stream


      FBI Files Tried to Connect Duddie Massad to Organized Crime

      August 31 2015
      The FBI Files of Raymond Patriarca released to GoLocal through a Freedom of … in Worcester advised Special Agent George Hanlon, “that he heard r

    • Jean:

      Not politics, not law but whim. Little people with lots of power are very dangerous especially when there are no adults around to call them to account.

      • Matt,

        If , as you say a born and bread United States Citizen can be digitally disappeared from being a U.S. citizen and converted to a Non Citizen in SSA and US Dept of State records on a “whim”, then no one is safe…and if it were merely a “whim” or mistake then one would think it would be easy to correct, but this has not been the case…so who has a compelling reason to take jurisdiction fix a “whim”? My situation has been referred to USDOJ criminal division initially in 2003 by NH USA, then again in 2007 by OIG USDOJ, and then again in 2009 by OIG USDOJ…and so far it appears no compelling reason for jurisdiction? Some “whim”!