Where the Bodies Were Buried (51 page)

As a prosecutor, Kelly had during the trial shown occasional moments of belligerence and scorn. In various hearings before the judge, with the jury out of the room, and at sidebars, he could barely contain his contempt for the defense, especially when their arguments veered toward a critique of the Boston U.S. attorney's office or the Justice Department's role in enabling Bulger and Flemmi. For Wyshak and Kelly, the Bulger case was personal. Their mandate was to convict Bulger, but it was also understood that part of their role was to protect and salvage the reputation of the system they served.

As his first question, in a tone both blunt and accusatory, Kelly asked, “Sir, it's fair to say, isn't it, that you're a man who likes to make up stories?”

Fitzpatrick was taken aback: “I beg your pardon.”

Kelly became even louder and more insistent: “You're a man who likes to make up stories, aren't you?”

“No,” said the witness.

“In fact, for years you've been trying to take credit for things you didn't do, isn't that right?” Kelly was not asking questions that required an answer; he was calling the witness a liar. “In the beginning of your testimony, didn't you gratuitously claim credit for arresting the mob boss Jerry Angiulo?”

“I did arrest Angiulo,” said Fitzpatrick.

“Okay. That's your testimony under oath, sir?”

“Yes.”

“Sir, isn't it a fact that the case agent on Angiulo was Ed Quinn?”

“Yeah, he was a ride-along with me. I was the ASAC in charge. I went to the table and put the arrest right on Angiulo.” The mafia boss had been arrested at Francesca's restaurant while eating lunch.

“That's a total bald-faced lie, isn't it?” bellowed Kelly, in a voice so loud that it startled some in the jury. “You had nothing to do with that arrest, did you?”

“Were you there?” asked Fitzpatrick, facetiously.

Kelly showed the witness an FBI 302 arrest report, written by Special Agent Ed Quinn. There was no mention of Fitzpatrick.

Said the witness: “This is [Quinn's] report. I can tell you categorically that I arrested Angiulo. I advised him of his rights. I was there at Francesca's.”

This particular line of attack on Fitzpatrick was inside baseball, Boston-style. Ed Quinn was one of the agents whose role in the Angiulo investigation had been highlighted in the book
Underboss
. Quinn had served in the FBI's Boston office for many years and was friendly with people in the U.S. attorney's office and also with reporters and book writers in Boston. Who deserved credit for the Angiulo arrest had been a bone of contention ever since Fitzpatrick published an account in his own book. By seeking to expose Fitzpatrick, Kelly was acting, in part, on behalf of Quinn and others in Boston law enforcement who were no fans of Bob Fitzpatrick.

Kelly spent a significant amount of time on the details of the Angiulo arrest, using Quinn's report to berate the witness, then he turned his attention to the Martin Luther King Jr. assassination. “Haven't you in fact pretended that you were the one who found the rifle that killed Martin Luther King? Haven't you made that claim in the past?”

“I found the rifle when I was at the scene. I was the first FBI agent at the scene, and I found a rifle coming down the stairs, having just missed James Earl Ray, the shooter. The rifle was in the alcove, and there's a report on that, a court report.”

“That's another outright lie, isn't it, sir?”

“The court report?”

“No, your testimony just now. Isn't it true that three Memphis police officers found the rifle that was used to kill Martin Luther King, not Bob Fitzpatrick?”

“I found the rifle along with them. They could have been there . . . but I'm the one that took the rifle, transported it to the bureau, submitted it to the forensic people.”

Kelly pounced. “Wait a minute, wait a minute.” His voice rose in indignation. “Transporting something is like being a courier, a gofer. That's not finding it, right?”

Kelly had worked with detectives and federal agents his entire career; he knew that some in law enforcement have a tendency to overstate their role in a particular case, especially a high-profile one. Retired lawmen often refer to a case they were involved in as “my case,” even if their role was merely supportive. Fitzpatrick had this tendency, and it was now being used as a broad, sweeping brush to portray him as an inveterate liar.

The first thirty minutes of Kelly's cross-examination were a relentless assault. No witness thus far in the trial had been on the receiving end of such aggressive and accusatory questioning, not even gangsters like Martorano and Weeks. The prosecutor was seeking to decimate Fitzpatrick's credibility. And he was doing so by using subjects that, thus far, had nothing to do with the Bulger case.

Kelly and Wyshak knew that Fitzpatrick's status as a loyal public servant gave added weight to his allegations about the system's coddling of Bulger and Flemmi. In order to undermine the witness's testimony about the
government's complicity in the Bulger fiasco, Kelly apparently felt that he first needed to destroy Fitzpatrick's credibility as a man of honor.

The trial adjourned for the day at a point where Kelly was just getting warmed up. Fitzpatrick would have to return to the stand the following morning, for more of the same.

I was supposed to meet Fitzpatrick that evening. When I called him, he was busy doing an interview for the CNN documentary crew that had been covering the trial from the beginning. I could tell from Fitzpatrick's voice that he was disappointed by the tone of Kelly's questioning, that once again, as during his time on the job, he was under attack for questioning the government's role in enabling Bulger.

“Let's meet tomorrow when I'm off the stand,” he said.

The following morning, Fitzpatrick arrived at the courthouse, knowing that he was going to again be pummeled. The prosecutors seemed to be acting on behalf of people whom he had named in his book, maybe former colleagues of Wyshak and Kelly. As they say on the street and sometimes in the halls of justice: payback is a bitch.

Sure enough, for the remainder of Fitzpatrick's cross-examination Kelly referred frequently to
Betrayal,
sometimes quoting from its pages and even calling into question the placement of certain photographs in the book.

Betrayal
was indeed problematic for Fitzpatrick. The book had been written by a crime fiction writer chosen by the publisher. Fitzpatrick had been interviewed extensively by the writer, but his contributions to the actual writing of the book were minimal. The author leaned heavily on fictional storytelling techniques, including reconstructed dialogue and instances of dramatization. The same could be said about the books of other witnesses, most notably Colonel Thomas Foley, John Martorano, and Kevin Weeks. Tom Foley's book had been portrayed as peripheral and insignificant by Fred Wyshak. The books of Martorano and Weeks were hardly mentioned.

In Fitzpatrick's case, his book was used as Exhibit A to portray him as an unrepentant fabulist.

“Didn't you use phony dialogue between James Bulger and John McIntyre in your book?” asked Kelly.

“It's probably part of the research,” explained the witness.

Kelly read a particularly hyperbolic passage of hard-boiled dialogue
between Bulger and murder victim McIntyre. There were titters in the courtroom. “That's completely made up, isn't it?” asked Kelly.

“I had a coauthor,” said Fitzpatrick. “So it could have been part of his narrative.”

“So it's your coauthor's fault, you think?” Kelly's tone was thick with sarcasm.

“I don't know.”

“Like sometimes it's headquarters's fault when you couldn't get things done in Boston, now it's your coauthor's fault here?”

“I didn't say it was his fault. I just said he coauthored it, and I don't recall that particular aspect of the writing of the book.”

Kelly pondered that and asked, “Do you think the McIntyre family, upon reading a little dialogue like that, would be pleased to see this phony dialogue?”

Using the McIntyre family was rich. The U.S. government, whom Brian Kelly represented, had fought the McIntyre family tooth and nail, along with all the families of Bulger's victims, in their civil lawsuit against the U.S. Justice Department and the U.S. attorney's office. Now Kelly was shamelessly using the aggrieved party as a cudgel to beat Fitzpatrick.

The onslaught continued. Kelly noted that in Fitzpatrick's testimony in the Wolf hearings, he never expressed that he was angry with Jeremiah O'Sullivan for not putting Halloran into the witness protection program. Said Kelly, “Back in 1998, when you were testifying under oath, [O'Sullivan] was still alive and could refute your claims, couldn't he?”

“I don't recall the exact date he died,” answered the witness.

“Well, he's dead now, right?”

“As far as I know.”

“Pretty easy to blame a dead guy, isn't it?”

Fitzpatrick had been mostly unflappable, but now he snapped. “Listen, that's an insult as far as I'm concerned.”

“Isn't that what you're doing?”

“No, that's not what I'm doing. And that's a blatant insult.”

The prosecutor and witness began talking over one another in a verbal scrum until the judge interceded: “Mr. Kelly, let him finish his answer.”

The defense team rarely objected; they did not come to Fitzpatrick's
defense, which seemed odd. The previous day, as Kelly's questioning became more and more vituperative, Brennan had objected. But today he was willing to let Kelly swing away. It seemed as though the defense team, the day before having seen the tenor of Kelly's cross-examination, overnight made a strategic decision to let the prosecutor beat up on the witness, and in so doing reveal to the jury how the government treats someone who goes against their program. Kelly's bullying posture and general temperament was so over-the-top, so disrespectful of a legitimate public servant, that he ran the risk of alienating the jury. Thus Fitzpatrick became a sacrificial lamb; he would be relentlessly pummeled without objection, in the interest of Whitey Bulger's legal defense.

AFTER FITZPATRICK FINISHED
his testimony, I met with him at the Marriott Long Wharf hotel, where he had moved from his previous accommodation. We sat down at the bar of the hotel, overlooking the inner harbor and Christopher Columbus Park. It was fair to say that Fitzpatrick was shell-shocked, but he remained jocular.

“Jane's taking it badly,” he said, referring to his wife. She had not been in the courtroom during the cross-examination but followed it via Twitter. Said Fitzpatrick, “This has been going on for decades. I felt like I was the one on trial, back in the mix, defending myself.”

It was a glorious summer day, with seagulls swirling and tour boats pulling up to the dock just outside our window on the second floor of the hotel. The pleasant conditions belied the brutal display that Fitzpatrick had just undergone.

“I knew they'd throw stones,” said Bob. “Some of it had come up at other trials. But Kelly's attitude was something new. He was acting like a hit man.”

Fitzpatrick was especially upset that as his closing volley, Kelly had quoted from his settlement agreement with the FBI. Fitzpatrick's understanding of that agreement was that it would remain confidential. Fitzpatrick had signed that agreement with the U.S. Justice Department, and now here it was being used against him by a representative of that same department.

I asked Fitzpatrick about his now-famous memo, the one he wrote after meeting Bulger at his condo in Quincy. In that memo, he suggested that Whitey Bulger be closed as an informant. Kelly had made an issue of the fact that the memo was never located, suggesting that Fitzpatrick lied and the memo never existed. Bob shook his head. “Don't you think I'd like to know what happened to that memo? I sent it to Larry Sarhatt, who I believe wanted to close Bulger. He might have put it in his office safe and the memo was later destroyed by James Ahearn [Sarhatt's successor]. Or maybe Sarhatt forwarded it to HQ and it was buried. I don't know.”

As with everyone I knew whose life had been drawn into the Bulger fiasco on both sides of the law, Fitzpatrick could not shake the past. In his mind, one of the FBI men most responsible was John Morris, even more so than Connolly. “He was Connolly's direct supervisor. If Connolly's tendency to identify with his informant, to kowtow to Bulger, was to ever be corralled it should have been done by Morris.”

Fitzpatrick remembered Morris back in the early 1980s showing him a book he was reading on the pathology of lying. To Bob, Morris was a classic example of the “superego lacuna,” the psychological term for someone who has holes in his or her conscience. “He conned Connolly, the bureau—everybody.”

Then there was Jeremiah O'Sullivan, who used to distribute pamphlets to fellow prosecutors and agents about how to root out corruption.

As Fitzpatrick sipped his drink and nursed his wounds, he was still having a hard time understanding how, in the eyes of those who took an oath and pledged allegiance to the concept of morality and justice, he was seen as the bad guy.

In retrospect, the mugging of Fitzy had been inevitable. Fitzpatrick's presence in the courtroom was a rebuke to generations of cops, agents, and prosecutors, from New England to Washington, D.C., who were part of the universe that helped create Whitey Bulger. After his direct testimony, Brian Kelly could have said, “No questions, Your Honor,” and it would not have affected the government's case. Fitzpatrick's testimony had little or nothing to do with the specific charges against Bulger. But Kelly, in his role as interrogator, was not there to serve the case. He was there to settle old scores,
to assume the role of the Great Avenger on behalf of a system that still had much to hide.
¹