Where the Bodies Were Buried (48 page)

Delusions of grandeur? Certainly. But they could hardly be blamed.

The FBI's commitment to their two informants was all-inclusive. Amid speculation on the street and in the halls of law enforcement that Flemmi and Bulger may have played a role in the disappearance of Davis and Hussey—among other victims—special agents from the Boston division paid visits to Olga Davis and Marion Hussey. The mothers were told that the bureau was doing everything in its power to locate their missing loved ones. They were also told not to talk to any other law enforcement agencies. In the case of Olga Davis, she was eventually told by an agent that she had “nine other children to worry about” and should move on with her life.

At the same time, false theories and disinformation about the murders were disseminated through FBI reports, supposedly based on inside information from their Top Echelon Informants, who just happened to be the two men who committed the murders.

BY DAY THREE
of Flemmi's testimony, defense attorney Brennan began to zero in on a line of inquiry that had gone cold weeks earlier.

Flemmi was the last chance the defense had to burrow into the history of Boston gangland and show how the Bulger era was a logical outgrowth of all that had come before. The opportunity had presented itself when, during Flemmi's direct testimony, Wyshak led the witness through a series of questions about Special Agent Paul Rico. Flemmi explained how, in the early months of the Boston gang war, he and his partner at the time, Frank Salemme, had been approached by Rico and a Boston police officer named Bill Stuart. At the time, Flemmi and Salemme were based out of Roxbury,
a rough-and-tumble Boston neighborhood, and they were aligned with a criminal gang led by the three Bennett brothers, Walter, Billy, and Wimpy.

The year was 1965. Paul Rico had by then inserted himself into the gang war as an agent provocateur. Although no one knew it at the time, Rico had enlisted Buddy McLean as an informant and had sided with what would eventually become the Winter Hill Mob, based in Somerville, in its war with the Charlestown gangsters led by the McLaughlin brothers and the Hughes brothers.

The Bennett brothers of Roxbury were aligned with the Charlestown Mob, which meant that Flemmi and Salemme were, too.

At the auto garage in Roxbury, Rico convinced the two hoodlums that they should switch sides. He explained the benefits of having an FBI agent like himself backing them up. Flemmi and Salemme agreed, forging a pact with Rico that immediately escalated the gang war, leading to the murders not only of two of three McLaughlin brothers and two Hughes brothers, but also all three Bennett brothers.

Fred Wyshak, during Flemmi's direct testimony, had been willing to detail this early alliance between Rico and the witness because it showed the earliest link between the FBI and the Winter Hill Mob. In the interest of full disclosure, the prosecutors knew that they needed to be forthcoming about this “unholy alliance.” Portraying Rico and later John Connolly as rogue agents was a way of controlling the narrative. This strategy had some obvious pitfalls, though.

For one, neither Connolly nor Rico was a rogue agent. Paul Rico had inserted himself in the Boston gang wars as a matter of policy; it had been a deliberate strategy on the part of the FBI to pit differing sides of the underworld against one another. The idea was to stir up acrimony so that agents like Rico could use this discord to cultivate informants by offering to take their side in the war. It worked. The cultivation of informants made Rico a star within the FBI universe, with pay raises, in-grade promotions, and letters of commendation from Hoover to prove it.

Having Flemmi detail Rico's Machiavellian ways ran the risk of exposing the immorality of what had become an unwritten strategy of law enforcement. Judge Casper, however, was not likely to let the proceedings stray too far in that direction. A far more perilous possibility was that by picking at the scab known as Paul Rico, the prosecutors might inadvertently reopen old wounds
and pave the way for questions about Joe Barboza, the framing of innocent people for the Deegan murder, and the larger narrative of corruption and culpability that the government had spent the entire trial attempting to conceal.

“Mr. Flemmi,” Brennan asked the witness, “at some point you learned about the Deegan murder, didn't you?”

The mood of the proceedings shifted; the ghosts of Deegan and Barboza had entered the courtroom. No creaking chairs, no coughs. The room went silent.

“Teddy Deegan was a friend of mine, yes,” answered Flemmi.

“And you learned that Mr. Barboza and your brother Jimmy Flemmi were involved in that murder, didn't you?”

“I found that out after they told me. . . . I was very upset . . . If I had known about it previously, I would have prevented it. I would have told them to back off the guy.”

“You knew that Mr. Barboza was working at some point with Mr. Rico as a cooperating witness, didn't you?”

“After he started cooperating, yes.”

“And after Barboza started cooperating, he started implicating people in that murder that weren't even there, isn't that true?”

“Yes, that's true.”

Brennan paused, knowing that his next question would likely bring an objection and a lengthy sidebar. “Mr. Rico had conversations with you about that murder and the prosecution of that murder, didn't he?”

Right on cue, Wyshak stood. “Objection. Can we have a sidebar on this?”

The five lawyers all gathered at the far side of Judge Casper's perch, away from the jury box.

Said the judge, “Counsel, what's the nature of your objection?”

Wyshak launched into what had become a well-worn melody: “Your Honor, I think that Mr. Brennan is seeking to insert the whole Limone matter into this trial. I think Mr. Carney raised it and has previously raised it. The fact that Mr. Rico and Mr. Condon may have been aware of exculpatory information during the sixties and did not provide that to state authorities, which resulted in the unlawful incarceration of certain individuals, I think is not relevant to this trial. They're just trying to insert
government misconduct into this case for—I don't know. Jury nullification is the only kind of argument I think they can make.”

The concept of jury nullification was obtuse, even to legal experts, but ever since opening statements Wyshak and Kelly had been trying to figure out where the Bulger defense was headed. Caught off guard by Bulger's willingness to admit to many of the charges in the indictment, they had taken a defensive posture in relation to the dirty history of Barboza and the Deegan murder, what Wyshak referred to as “the Limone matter.” For the prosecution, the concern was that if the defense was allowed to give a detailed explication of the corrupt universe that had created Whitey Bulger, they would be able to say, “Yes, our client was a criminal, but he was a criminal in partnership with a corrupt criminal justice system. For you to find the defendant guilty, you must also find guilty the entire justice system. And since the justice system does not accept responsibility and cannot be held accountable, it would be unjust to pin it all on Whitey Bulger.”

As a tactic, jury nullification was rarely attempted, much less successful. It had been used in the 1950s in the Deep South in cases involving the Ku Klux Klan and acts of racial violence. Racist Caucasian juries voted not guilty to crimes that had been charged, even though they knew the accused had committed the acts, because they sympathized with the defendants.

If Brennan and Carney were angling for an acquittal based on the supposition that they could so tarnish the U.S. Department of Justice that the jury would react with disgust and vote not guilty, they had work to do. That case had not yet been made. Brennan seemed to realize that if he were to make that case, now was his best opportunity.

Responding to Wyshak, Brennan explained, “This conversation [between Flemmi and Rico] about the Deegan murder and the prosecution's involvement in Limone go to the heart of this witness's state of mind. . . . What this is, it's the earliest point that we have of the formation that Flemmi knows the Department of Justice will protect their own if they become informants or cooperating witnesses and the extent that these people will go to protect them.”

Judge Casper listened, then turned to Wyshak: “Counsel, why isn't it permissible, in your view, for Mr. Brennan to inquire about Mr. Flemmi's understanding of the relationship between Rico and Barboza when this was the subject, as I recall, of some questions on direct examination?”

Wyshak answered that his direct examination on this issue had been limited. “Furthermore,” he added, “I don't think Mr. Rico was protecting Mr. Barboza. You know, the word
protecting,
I don't really understand what it means in this context. Rico at some point developed Barboza as a witness, quite frankly, because the Mafia had murdered two of Barboza's underlings, Mr. [Arthur] Bratsos and Mr. [Thomas] DePrisco, and Barboza agreed to cooperate against the Mafia regarding the Teddy Deegan murder. To the extent that Barboza was providing false information to the FBI about the participation of certain individuals in the murder and Rico and/or Condon supposedly knew about that and didn't disclose it to the state prosecutors, I just don't think Flemmi had that information or was part of that conspiracy. . . . We're going to have a little mini-trial about what was happening in the Limone case. . . . I just think that the probative value is very low and the prejudice is very high.”

Brennan did not budge. It was his contention that Flemmi became an informant for the FBI back in 1967 expressly because of what Rico and Condon had been willing to do for Barboza. The implication was that Flemmi later carried this knowledge into his relationship with Whitey Bulger. If you were to accept the claim that Bulger had become an informant, it is probable that his willingness to do so had its roots in the Rico-Barboza-Flemmi relationship. “This issue can be no more central,” said Brennan. “It goes right to the relevant issues in this case. The government has opened the door. And I know it is a damaging issue for the federal government, but it's one that exists.”

The discussion did not end there. Sensing that this was a crucial moment that needed to be given its due, Judge Casper dismissed the jury for the day. The lawyers debated the issue for another half hour. Ultimately, Casper decided that she would let Brennan ask the witness certain questions on this subject, but how far she would let him go was dependent on how much Flemmi was willing to admit he knew about the nature of Rico's deal with Barboza.

The following morning, cross-examination resumed. Given the discussion that had taken place the day before, there was considerable expectation that this could be a turning point in the defense's case. If Brennan were able to make the connections he wanted to make, it was possible that the full narrative thread of corruption in Boston over the last half century could be
established, helping to shed light on how the entire Bulger era had come into being.

Unfortunately, the witness was either unwilling or unable to provide the smoking gun.

At his age, with diminished hearing and somewhat attenuated mental capacities, Flemmi spun his wheels. At issue was a task that Flemmi had carried out for Rico. At the FBI agent's request, he visited his brother Jimmy the Bear at Walpole prison. His job was to make sure that Jimmy did not interfere with Barboza's cooperation in any way.

Brennan had hoped to establish that Flemmi carried out this mission because he knew, based on earlier conversations with Rico, that it would enhance his relationship with the government and provide certain benefits. Brennan asked Flemmi about his “state of mind,” which was the legal ground upon which the judge had allowed him to pursue this line of inquiry.

“Mr. Brennan,” said Flemmi, “all I know is [Rico] told me what to say. I went up and told my brother not to get involved. He was part of the murder.”

Flemmi seemed to think that Brennan was trying to rope him into the conspiracy that resulted in the false convictions of Salvati, Limone, and others for the Deegan murder, and so he became prickly and defensive on the stand: “I had a very small role. . . . I just did what he asked me to do.”

“But you knew that the government had a lot of power as far as who they were going to place in the prosecution and who they would avoid prosecuting, right?”

Flemmi sniffled and shook his head. “I can't put myself with the government, how they felt and what they were going to do. I just did what Rico asked me to do.”

It was clear that Flemmi was not going to be the bombshell witness that the defense hoped he would be. Brennan dropped the subject and moved on to other issues of murder, corruption, body disposal, and the ins and outs of Flemmi becoming a cooperating witness against everyone he had ever known in the criminal underworld.
²

THE GOVERNMENT PUT
on the stand four more witnesses after Flemmi. Two of those witnesses—Kevin O'Neill and Richard Buccheri—were significant to the case.

O'Neill, a hulking, three-hundred-pound son of South Boston, was called to illustrate how Bulger had commandeered Triple O's as his unofficial headquarters, and how he had used the South Boston Liquor Mart and the nearby Rotary Variety store as a way to launder his illegal proceeds from drugs, extortion, gambling, and other rackets. Asked why he didn't ever say no to Bulger, O'Neill answered, “I didn't think that was smart. . . . He wasn't a guy to fool with.”

Buccheri was an extortion victim. In the summer of 1986, he had intervened in a dispute between Kevin Weeks and a neighbor over demarcation boundaries on their properties. Buccheri got a call from Steve Flemmi, who told him that Bulger was not happy that he had stuck his nose in their business. He had to go see Bulger at Flemmi's mother's house on East Third Street.

Buccheri knew the house. He was a real estate developer who had helped Flemmi find contractors to build the cabana behind the mother's house. It was during the building of that cabana that Buccheri first met Jim Bulger and his brother, the senator William Bulger, who lived next door.