Where the Bodies Were Buried (11 page)

“Now,” asked Carney, “in the course of doing this, did you approach Jeremiah O'Sullivan for assistance?”

At the mention of O'Sullivan's name, Hafer stood up: “Objection.”

“Grounds, Counsel?” asked Judge Casper.

“Beyond the scope. Relevance.”

The judge thought about speaking further on the matter out loud, but instead said, “I'll see counsel at sidebar.”

The lawyers huddled off to the side with the judge, away from the jury so they could not be heard.

The sidebar process is a staple of American jurisprudence, an opportunity for both sides to discuss a point with the judge that, by its very nature, might become prejudicial if it were to be discussed in open court. Sidebars
can be tedious for a jury and public observers; they interrupt the flow of the proceedings and give the impression that something important is being withheld from the public, which, in this case, was true.

“Where are you going with this?” Judge Casper asked Carney, with the court stenographer nearby recording every word.

The defense lawyer explained how he would question Lieutenant Long about O'Sullivan, chief of the federal New England Organized Crime Strike Force. It was Carney's understanding that, in his request for approval from O'Sullivan, Long told him specifically that he did not want the FBI to know about the bug, telling O'Sullivan that he did not trust them. “And O'Sullivan said, well, the FBI would have to be involved.” So Long and his team decided to go around O'Sullivan and instead seek as their cosigner a prosecutor from the Suffolk County District Attorney's Office. They did get approval, and the bug was secretly planted in the garage. Almost immediately, the bug was compromised. Somehow, the gangsters knew about the bug almost before it was planted.

Said Carney to the judge, “I will ask Lieutenant Long if he conveyed knowledge of the bug to many people or rather kept it in a very tight circle. And I expect he'll say he kept the knowledge of the bug to a very select, handpicked group of people that he trusted. I'll ask him if, to his knowledge, John Connolly had any knowledge of the bug. I expect he'll say no. Did he tell John Morris [Connolly's supervisor] any information about the bug? I expect he'll say no. And then I'll ask him, so the only person in federal law enforcement who would have known about the bug was, to his knowledge, Jeremiah O'Sullivan.”

“And how is this relevant?” asked the judge.

“Because it suggests that O'Sullivan may have been the person who led to the compromise of the bug.”

The prosecutor jumped in: “Anything that O'Sullivan said to Long is hearsay. This entire line is well beyond the scope of direct [examination], and it's not relevant.”

The discussion continued, and it was animated. For the defense, it was a major point. In terms of detailing the range of the corrupt conspiracy that had enabled Bulger, it was crucial: Carney was attempting to throw out a broad net, and the biggest fish he hoped to entangle was the late Jeremiah T. O'Sullivan.

Only in recent years had it emerged that O'Sullivan, with his impeccable and imposing reputation as a fierce crime fighter, had quite possibly been the Man Behind the Curtain in the Bulger saga. When he passed away in 2009 at the age of sixty-six, his role in having protected Bulger and Flemmi was not fully known. Though he had been served with a subpoena to appear at the Wolf hearings back in the late 1990s, he was exempted from testifying when he suffered a stroke that allegedly prohibited him from speaking. In later years, he gave no interviews nor ever attempted to fully explain his motives.

In his time with the Strike Force and later as U.S. attorney in Boston, O'Sullivan made some enemies. He could be self-righteous in the manner of New York's Rudolph Giuliani, another crusading federal prosecutor during this same era. Over the years, through hearings and trials and the accounts of participants, it became clear that O'Sullivan was far more central to the DOJ's relationship with Bulger and Flemmi than he had ever been willing to admit publicly.

To the defense, O'Sullivan was the Wizard of Oz, and since he was dead and not around to defend himself, he was a convenient target. Much could be implied about his actions; he served as an attractive receptacle for any conspiracy theory the defense could imagine.

Carney was fully aware of the importance of O'Sullivan to their defense. If, at this early stage in the trial, he were shut down by Judge Casper in this attempt to make O'Sullivan a relevant factor in the case, the prospects for laying out the defense he and his co-counsel had in mind would be severely disabled.

Hafer also seemed to understand the importance of the moment. “I reiterate, this is not relevant, Your Honor,” he said forcefully to Casper. “It does not go to this witness's credibility, does not go to any material issue.”

“Yes,” said Judge Casper, “it's beyond the scope. I'm not going to allow it to go any further.”

Carney did not take no for an answer; he continued to argue in favor of establishing O'Sullivan as a primary co-conspirator.

“I made my ruling,” said the judge.

Walking back toward the podium to continue his cross-examination of the witness, Carney couldn't help but look defeated. His shoulders were
slightly slumped, and, as he resumed his questioning of former state trooper Bobby Long, his voice was meek. His strategy for steering the evidence in a direction that would illuminate the defense he had in mind had been strangled in the crib. It was going to be a long trial.

THOMAS J. FOLEY
was another retired statie with a tale of woe to tell. Whereas Bobby Long had seen his three-month-long investigation of the Lancaster Street garage fall prey to sabotage from within Boston's law enforcement fraternity, Foley entered the courtroom with the hope of fulfilling a dream deferred. The dream was to put away James Bulger for the rest of his natural life; the deferral was the consequence of a creeping realization, years ago, that the system to which he had taken an oath of service was riddled with corruption and deceit.

Fred Wyshak, the prosecutor who stood to lead Foley through his direct examination, had an interesting task. As with Trooper Long, Foley had realized over time and with mounting dismay that his attempted investigation of Whitey Bulger was sabotaged by the FBI and the U.S. attorney's office. But Wyshak had nothing to gain by going over this with the witness. Since he worked for the U.S. attorney's office, it was not in Wyshak's interest, or the interest of the case, to wallow in past transgressions of the very office for which he plied his trade. The entire subject was a land mine to be avoided. In many ways, it was a crystallization of the main difficulty that the prosecutors had: how did they convict Bulger without collaterally tarnishing the reputation of the system they represented.

On the witness stand, Foley projected the same aura of integrity for which he had become known in his years as a state trooper. He was Irish American, a redundancy that would become more evident as the trial progressed. There were an unusually high number of Irish American cops and agents in Boston, which sometimes made the trial of Bulger and his mostly Irish American gang seem like a donnybrook between contrasting sides of the Hibernian identity.

Foley had sensitive blue eyes and spoke in a calm, soothing tenor. He had the look and demeanor of a Catholic priest, another profession in which he might have found himself dismayed or disillusioned by the failings of an
institution to which he had pledged his undying loyalty. Foley had been, until his retirement in 2004 at the relatively young age of fifty, a devoted officer of the law, but more than that he seemed like a virtuous man forever doomed to smack up against the baser impulses of his own tribe.

“Good morning, Colonel Foley,” said Wyshak.

“Good morning,” answered the witness.

It was an unusual moment for both men. More than two decades earlier, Foley, along with prosecutors Wyshak and Kelly, had initiated the criminal case against Bulger that brought them all to this courtroom. Now, here they were, paunchier and grayer, like participants in an old-timers' game, still willing to take the field and assume the roles of player and teammate.

The main reason Foley had been called as a witness was to introduce some key pieces of evidence. In 2000, Foley was part of a team that had confiscated a huge cache of weapons that belonged to Bulger and Flemmi's criminal organization. It was Wyshak's intention to initiate the introducing of the weapons into evidence as soon as possible, but first he had a few items he needed to tend to with his witness. One was a recitation of Foley's career in the area of organized crime, so that he could be recognized by the court as an expert witness on the subject. The other thornier item was to put out on the table the fact that Foley had coauthored a book about his pursuit of Bulger, titled
Most Wanted: Pursuing Whitey Bulger, the Murderous Mob Chief the FBI Secretly Protected
.

Like many who had been drawn into Bulger's orbit and later wrote a book about it, Foley had embarked on his venture in publishing at a time when it looked as though Bulger would never resurface. The idea that he would have to explain his book in a court of law was, at the time, likely a distant concern. As with Pat Nee, Kevin Weeks, and others who published Bulger-related memoirs, Foley had taken the opportunity to unleash years of frustration on the page. He was not, apparently, concerned about burning bridges.

Of the FBI, Foley wrote in
Most Wanted,
“I have never known any other organization, or any individuals, where what they said and what they did had so little to do with each other.” Foley broadened his critique to include what he called “the feds,” a symbiotic partnership between the FBI, the U.S. attorney's office in Boston, and the Justice Department, which seemed determined to shut down local efforts to bring Bulger to justice:

Foley had used
Most Wanted
to get things off his chest. In the courtroom Wyshak sought to minimize the book, asking in an offhand manner, “Did you also write a book?”

“Yes, I did,” said Foley.

“You didn't write it, right? Somebody else wrote it?”

“I was—I had somebody I collaborated with, yes.”

“What's the book about?”

“It's about the investigation into the activities of James Bulger.”

“It's fair to say it's a story about your career?”

“Yes.”

“How much editorial control did you have over the book?”

“Some editorial control, not total.”

“Were there some things in the book that you disagreed about?”

“Yes.”

And that was the extent of Wyshak's inquiries about the book. Quickly he moved on to the detailing of Foley's storied career; a series of questions to establish Foley's bona fides as an expert on the subject of organized crime in the Greater Boston area (duly stipulated by the judge); and, most important, his investigative uncovering and acknowledgment in court of the Bulger gang's vast arsenal of weapons.

The handguns, rifles, machine guns, knives, numerous rounds of ammunition, and many other accoutrements of the gangster life had been found in a small guesthouse located directly behind a house occupied by Steve Flemmi's seventy-five-year-old mother. The house was located in South Boston, at 832 Third Street, a half block away from the Haunty.

Colonel Foley pointed out that Flemmi's mother's house, and the stash of weapons that adjoined it, were located directly next to the house of state senate president William Bulger, Whitey's brother.

The fact that various murders, the stashing of guns, and criminal summit meetings had all taken place within a few hundred yards of Senator Billy Bulger's house had been reported in many courtroom accounts, newspaper articles, and books leading up to this current trial. For those who had been following the Bulger saga, it no longer qualified as a shocking revelation. But for the jury listening to the testimony of Trooper Foley, it must have been the beginnings of an understanding of just how insidious was the Bulger gang's nexus of power, with murders, guns, mothers, and powerfully connected political siblings all tied together in a neat little bow on one neat little street in Southie.

And then there was the arsenal itself. Wyshak began by entering into evidence and having the witness describe a series of photos taken inside the guesthouse. The house had been built expressly to serve as a place for criminal summit meetings and the hiding of weapons; there was a secret room behind a wall. Inside that room were row upon row of gun racks; shelves for the storing of ammunition, silencers, knives, brass knuckles, etc.; hooks for the hanging of bulletproof vests, hoods, and masks.

Foley noted that the investigators had expected to find more. They later learned from Flemmi's son and also from Kevin Weeks, both of whom were by then cooperating with the investigators, that months before the raid most of the arsenal had been moved from the guesthouse to another hiding place, in Somerville. So Foley and his team also descended on that location and discovered an even larger arsenal hidden in the cellar of a nondescript working-class house at 62 Dane Street.

Over the next two hours, on a flat-screen monitor in the courtroom, Foley was shown and identified photo after photo of guns and ammunition. “That's an M-1 military rifle. . . . That's a pump-action shotgun with the butt removed. . . . That's a semiautomatic pistol. . . . That's a Thompson submachine gun. . . . That's a derringer. . . . That's a Smith & Wesson revolver. . . . That's a black bag containing multiple clips of ammunition that would be inserted into the automatic weapons. . . .” Along with the guns was a staggering array of criminal supplies: “That's a camouflage mask with
a fake beard on it. . . . That's a U.S. Navy gas mask. . . . That's a Boston police officer badge found inside a safe. . . . That's a double-edged military knife. . . . That's a stiletto. . . .”