Black Mass: The Irish Mob, the Boston FBI, and a Devil's Deal (49 page)

It would become known as the “informant defense,” and to support his claim Flemmi soon began filing sworn affidavits describing his life with the FBI and the promises he said FBI agents had made to never prosecute him and Bulger.

ON May 22, culminating the months of closed hearings and the legal papers filed under seal, Judge Wolf granted Cardinale’s wish for an open, evidentiary hearing. In a forty-nine-page ruling, Wolf said the purpose of the discovery hearing would be to allow Cardinale and other defense attorneys to question FBI agents and officials about the bureau’s relationship with Bulger and Flemmi so that he could decide whether tapes and other evidence should be suppressed. To that end, the judge said he had decided he had to order the Justice Department to disclose publicly whether Bulger, Flemmi, and the other names included in Cardinale’s original motion had been in fact “secretly providing information to the government.”

The government, noted Wolf, did have other options if it did not want to comply with his order. He acknowledged that his ruling undercut the “generally recognized interest of the government in maximizing the confidentiality of its informants in order to encourage the flow of information from informants.” He said that at times the government “elects to dismiss a case rather than confirm or deny the existence of a cooperating individual.” But, concluded Wolf, if the government wanted to continue against the Mafia and the Bulger gang, it would have to share its secrets.

Wyshak urged Wolf to reconsider, but the judge said no.

Despite the ruling, this team of prosecutors was not about to drop the case. There was no turning back. The Justice Department therefore decided to go ahead and do what no federal official in Boston had ever done: on June 3, 1997, more than two decades after John Connolly first approached Whitey, it confirmed for the court Bulger’s role as a longtime FBI informant.

Paul Coffey uttered the magic words: “I, Paul E. Coffey, being duly sworn, depose and say, that pursuant to this Court’s Order of May 22, 1997, I hereby confirm that James J. Bulger was an informant for the Boston Division of the Federal Bureau of Investigation (FBI).” For now, wrote Coffey, the government was only going to name Bulger, and he explained why, in Bulger’s instance, the decision was made to break from the strict practice of protecting the confidentiality of informants. Bulger, he wrote, “is accused of leading a criminal enterprise which committed serious violent crimes continuously over many years.” It was a crime spree, wrote Coffey, that overlapped with his work as an FBI informant. Moreover, Bulger, as a fugitive, was now trying to escape responsibility for his many alleged crimes. These factors combined to create “unique and rare circumstances,” wrote Coffey, which allowed for outing Bulger in order to put him behind bars. “Bulger has forfeited any reasonable expectation that his previous informant status will remain confidential.”

The Justice Department obeyed the court order knowing full well that to do so meant allowing Judge Wolf to enter a no-man’s-land. The FBI’s Bulger files were a place where no independent body—such as a federal court—had ever gone before. None of the prosecutors—nor, for that matter, the defense attorneys—knew the extent of that corruption, but they all had a strong sense that opening up the FBI files would get ugly. Paul Coffey had said as much to the judge as the two men were discussing Cardinale’s demands about Bulger and Flemmi: “We see this as a time bomb.”

That bomb, after so many years, was about to go off.

On a rainy winter morning
in Boston, January 6, 1998, the judicial excavation into the FBI’s ties to Bulger and Flemmi finally began. “We’re here today,” the judge announced formally in courtroom number 5 in U.S. District Court, to begin “hearings on the motions to suppress certain electronic surveillance and Mr. Flemmi’s motion to dismiss based on alleged promises that were made to him.”

The lawyers, standing, introduced themselves: Fred Wyshak, Brian Kelly, and Jamie Herbert for the government; Tony Cardinale, Ken Fishman, Martin Weinberg, and Randolph Gioia for the four mobsters. Off to the left side, under the watchful eye of federal marshals, sat the accused: first Frank Salemme, dressed in a gray, double-breasted suit and red tie; then Bobby DeLuca; Stevie Flemmi; and finally, to the left of Flemmi, hitman Johnny Martorano. They sat in silence. No one—not the mobsters, not the lawyers, not the judge, and none of the television, radio, and newspaper reporters who filled the benches in back—had any idea what was to come. Never before had the matter of the Boston FBI, Whitey Bulger, and Stevie Flemmi been the grist of open federal court proceedings.

It was now seven months since the government had obeyed the court’s order in June to identify Bulger as an FBI informant. But since that pivotal moment, weeks and months had come and gone as the judge and the lawyers prepared for the hearings and argued over their scope and ground rules. The racketeering case was already almost three years old and still stuck in its pretrial phase. But by now all the parties had realized that nothing about the case would ever move quickly, as the judge moved ponderously into unknown legal terrain: the backstage, inner workings of the FBI.

In the months leading up to this moment, the Justice Department had been downloading to defense attorneys hundreds of pages of previously secret FBI files covering the FBI’s history with Bulger and Flemmi. Cardinale, Fishman, and the others devoured the documents. “We started to realize there were all kinds of new motions, including government misconduct,” said Cardinale. “We began to ask, ‘If Flemmi was an informant for that many years, how in the world can this indictment be any good?’”

For his part, Flemmi, having decided he had nothing more to lose, began filing sworn affidavits describing juicy details of his double life. It was the legal equivalent of flirting, revealing selective and sensational examples of FBI protection he claimed went to the heart of “informant defense.” In one, Flemmi said that Morris had promised him and Bulger they could commit any crime “short of murder”; in another, that the FBI regularly tipped them off to other investigations, including the timing of the 1995 racketeering indictment that he was now fighting to get booted out of court. By year’s end Fishman had refined the Flemmi defense, arguing that Flemmi had been “authorized,” mainly by Morris and Connolly, to commit many of the crimes for which he stood accused. Because the FBI had promised Flemmi “immunity,” he could not now be prosecuted for those crimes.

Wyshak, meanwhile, had staked out the government’s response to the various disclosures by Flemmi that now regularly made front-page headlines in the city’s newspapers. The actions of “rogue agents,” Morris and Connolly, Wyshak argued, should not undermine the racketeering case; any promises of protection they may have given Bulger and Flemmi were illegal and therefore could not possibly constitute anything close to legal “authorization.” Wrote Wyshak: “Extensive reviews of [FBI informant] files by the parties as well as by the Court have failed to unearth a single shred of objective evidence that Bulger and Flemmi were authorized to commit the crimes alleged in the indictment.”

It was a high-wire argument of sorts, as prosecutors sought to protect the evidence against the mobsters but, at the same time, acknowledge the stomach-turning corruption of FBI agents. Then, late in the year, Morris was granted immunity in return for testimony that would buttress the government’s point of view; he would confess, on the one hand, to crimes and FBI misconduct, but also testify that Bulger and Flemmi had never been given any formal immunity.

The two positions were reflected in the opening remarks that winter morning when the Wolf hearings finally began.

“The focus here is on the promises made to my client, Stephen Flemmi, by the FBI,” Fishman told the court. “In exchange for his very unique and special cooperation, he would be protected, he would not be prosecuted.”

Hogwash, replied Wyshak when his turn came. Bulger and Flemmi had never had any official deal guaranteeing they would not be prosecuted for their crimes. The defense attorneys, said Wyshak, were portraying Flemmi as if he were some kind of “Junior G-man with a license to kill.

“Isn’t that preposterous?” mocked Wyshak.

BUT of course it wasn’t so preposterous after all.

In the months to come Fishman and Cardinale may not have been able to uncover a paper trail showing a formal promise of immunity, but they showed that the Boston FBI was a House of Horrors when it came to Bulger and Flemmi—that agents coddled, conspired, and protected the mobsters in a way that for all practical purposes had given them a license to kill.

Right from the start, Wyshak and Wolf tangled, and the tension between the prosecutor and the judge erupted regularly as Wyshak fought Wolf on the range of the questions put to government officials and the growing pile of government files that were being unsealed. It wasn’t as if Wyshak was trying to cover up FBI corruption—by now he was overseeing an active investigation of Connolly and others—but he opposed Wolf’s approach to staging a court inquiry that, to Wyshak, seemed without limits and restraints.

“You might as well put the whole file in!” Wyshak barked at the judge just two days into the hearings, on January 8. “Why don’t you just put the whole file in?”

“Why don’t you just sit down, Mr. Wyshak?” Wolf said.

Wyshak would not, and he continued arguing against allowing a new batch of FBI files to be made public.

“Have a seat,” Wolf interrupted.

“What is the relevance?”

“Have a seat.”

Wyshak remained standing.

“Do you want to be held in contempt? Sit down!”

The hearings lasted most of 1998. The testimony of the 46 witnesses filled 17,000 pages of transcripts, and 276 exhibits—mostly lengthy internal FBI documents—were admitted into evidence. Taking the stand and swearing to tell the whole truth were a former Massachusetts governor and U.S. attorney (William Weld); a sitting Superior Court judge and former protégé of prosecutor Jeremiah T. O’Sullivan (Diane Kottmyer); the three FBI supervisors who ran the Boston office during the Bulger years (Lawrence Sarhatt, James Greenleaf, and James Ahearn); and a long line of federal drug agents, other FBI supervisors, and many of the FBI agents who’d worked alongside Connolly (Nick Gianturco, Ed Quinn, and John Newton). It was a who’s who of the federal law enforcement establishment, and there was a touch of the surreal as former FBI agents on the witness stand sometimes seemed to mimic tactics usually displayed in court by the gangsters they pursued.

The godfather of the FBI’s Organized Crime Squad, Dennis Condon, the retired supervisor who had first matched Connolly, Bulger, and Flemmi together back in the mid-1970s, took the stand in early May and eluded tough scrutiny. The lawyers were hoping he would shed light on the early years of the FBI and Bulger, but Condon pleaded a blank memory. He set the standard for responding, “I don’t recall.” Even when an attorney showed him an FBI document he’d prepared, Condon would shrug, say he didn’t recall writing it, and was therefore unable to elaborate further. Cardinale and the other attorneys were left rolling their eyes, exasperated.

Jeremiah T. O’Sullivan eluded scrutiny altogether. In late February the fifty-six-year-old former prosecutor suffered a heart attack, was hospitalized, and had an adverse reaction to medication. Facing a lengthy rehabilitation, he was spared sharp questioning about removing Bulger and Flemmi from the horse race-fixing case in 1979. O’Sullivan would also have been grilled on claims he’d made publicly and to government investigators that his hands were clean because he’d never even known Bulger and Flemmi were FBI informants. The evidence to the contrary was substantial, and defense attorneys had been eager to put O’Sullivan on the hot seat.

The missing prosecutor quickly became a target of dark courthouse humor. Lawyers and commentators couldn’t resist suggesting that the heart attack enabled O’Sullivan to assert a claim many mafiosi had tried to pull off—too ill to testify. In fact a fiery O’Sullivan, back in the mid-1980s, had aggressively fought Mafia enforcer Larry Zannino’s medical claim that he was too sick to come to court. The prosecutor forced Zannino to appear, even though he was in full medical regalia, strapped into a wheelchair and breathing from an oxygen tank. Now people began to joke that O’Sullivan had “pulled a Zannino.” Though by the end of the hearings O’Sullivan would recover and resume his private law practice at one of the city’s prestigious, old-line firms, Choate Hall and Stewart, the man who for sixteen years had fought the Boston Mafia never once took the stand.