Where the Bodies Were Buried (7 page)

“Bulger and Flemmi got back to the house. . . . Eventually, Bulger led Barrett to the top of the cellar stairs, and they made a little joke to Kevin
Weeks. They said, Barrett's going downstairs to lie down for a while. As Barrett walked down the stairs, this man over here, James Bulger, shot him in the back of the head, killing him.

“This little house at seven ninety-nine Third Street didn't have a regular cement cellar. It was dirt. It was that dirt cellar where Bucky Barrett was buried. Bulger didn't get involved in the burial process; he let other gang members do that. He stayed upstairs and rested on the couch.”

The jury sat in silence; Kelly had them. He could have continued for another hour on the Bucky Barrett murder alone, but there was much to cover.

A chart was projected onto large flat-screen monitors for the jury to see; it was a list of the thirty-two counts, or charges, in the indictment. Kelly led the jury through the various counts. Twenty-three were related to money laundering. Five related to illegal gun possession charges. There were numerous counts related to illegal gambling. Some of the most vivid testimony in the trial, Kelly noted, would stem from the extortion charges against Bulger. There were also many narcotics charges.

All of these charges came under the heading of racketeering. To be considered part of a racketeering enterprise, a defendant had to be found guilty of at least two racketeering acts. Bulger was charged with thirty-three.

Kelly rushed through the various counts in the indictment and focused primarily on the murders. He promised the jury that, along with hearing from Bulger's criminal associates who, in some cases, had taken part in these murders with Bulger, they would hear testimony from wives, children, and other relatives of the deceased. Some of this testimony would be heart-wrenching, Kelly promised. Then he dove back into his litany of violence, picking up with racketeering count number eight, the murder of John McIntyre.

As Kelly explained it, John McIntyre was believed to be an informant against Bulger and his gang. He was lured to the house on Third Street and, like Bucky Barrett, chained to a chair. The prosecutor painted the picture: “And then McIntyre was led downstairs to the basement at gunpoint and McIntyre was placed on a chair and then this man over here, the defendant, James Bulger, tried to choke him to death with a rope. But the rope was too thick, couldn't kill him, all it did was make him gag. So as he was gagging, Bulger asks him, You want one in the head? And McIntyre says, Yes, please.
And at that point Bulger shoots him in the head. And then, like Barrett, McIntyre is buried in the dirt floor.”

Here Kelly paused to let the details work their way into the hearts and heads of the jury, then he was back at it with his Southie version of Grand Guignol theater: “Now, several months after this murder of McIntyre, Kevin Weeks was told by Bulger to go back to that house. They were going to meet Stephen Flemmi, Bulger's longtime criminal partner. Weeks was told that Flemmi was coming by with his stepdaughter, Deborah Hussey. At first, Weeks was relieved when he heard that Flemmi was coming by with his stepdaughter. He thought with her around, nothing bad would happen. But Weeks was wrong. Because years earlier, Hussey had been molested by Flemmi, and she had a tough life, and as you will hear in this case, a much tougher death—a death at the hands, literally, at the hands of Bulger. . . .

“So, Weeks was upstairs using the bathroom when he heard Flemmi and Deborah Hussey arrive. What does he hear next? He hears a big thud, like someone falling to the floor. Because, in fact, that's what was happening. Deborah Hussey was falling to the floor as James Bulger strangled this young woman to death. And then she, too, like Bucky Barrett, was buried in a dirt grave in the basement.”

Bulger was a killer, but he was also a mob boss, a gangland figure of great renown; Kelly gave the jury a brief history of the Winter Hill gang and a thumbnail sketch of Bulger's criminal enterprise, noting how he was at times a partner and also a competitor of the Mafia in Boston. He gained an edge in the city's underworld, Kelly freely admitted, through “public corruption.” He bought off cops and FBI agents and a key member of the Massachusetts State Police. Bulger became an informant for the FBI, who protected him as if he were one of their own.

Nowhere in Kelly's opening statement was there any mention of Jeremiah O'Sullivan or the role he and others from the U.S. attorney's office or Department of Justice might have played in protecting Bulger's criminal enterprise.

Eventually, the prosecutor turned his attention to one of his and Wyshak's biggest challenges. In their desire to nail Bulger, they would be calling to the stand men who were as bad, if not worse, than Bulger himself. One of those men, John Martorano, admitted to killing twenty people. Surely, defense attorneys would seek to convey to the jury that this was a
case of the government making deals with the devil, and so Kelly, preemptively, put it out on the table.

“I've mentioned now two of Bulger's closest co-conspirators, John Martorano and Steve Flemmi.” Here the prosecutor's voice hardened, letting the jury know that this was the part where they would have to eat their spinach. “Like the defendant, Bulger, they are killers. And they were part of Bulger's criminal enterprise for many, many years. They were prosecuted and pled guilty, and eventually both agreed to cooperate. They pled guilty to participating in murders, extortion, money laundering, racketeering. They will both testify in this case. They will admit to their crimes, and they will explain to you their friend Bulger's role in those crimes. . . .

“Flemmi and Bulger were partners in crime for many, many years. They extorted people, they killed people together. In fact, after several of the murders that Bulger and Flemmi committed together, Flemmi pulled the teeth out of the victims in the mistaken belief that it would somehow prevent the bodies from being identified, not anticipating DNA testing years later. So, clearly, Flemmi is a vicious killer, but just as clearly, the evidence in this case will show that he was James Bulger's partner for many years.”

And if all this weren't enough for the jury to take in, Kelly finally got around to explaining that Bulger and Flemmi “were also partners in the informant business.” They both met with FBI agent John Connolly and fed him information about criminal rivals. They both paid thousands of dollars in bribes to Connolly and others in law enforcement in exchange for inside information that would help them “escape prosecution from legitimate cops who were, in fact, investigating them.”

Kelly's opening statement lasted nearly ninety minutes. At the end, he came back to the nineteen murders. He read aloud the name of each victim as an accompanying photo was shown to the jury on a monitor—usually a photo of the victim in the flower of his or her youth, vigorous, smiling, a family photo of a loved one. It was an effective device, with the names and faces of the dead lingering in the courtroom for weeks and months to come.

LATER THAT MORNING
, the lead defense lawyer, Carney, stood to deliver his side's opening statement. Whereas Kelly was unfussy and down-to-earth,
Carney was formal and patrician. With his white beard and bald cranium, he somewhat resembled his client, though he was softer and far less intimidating in demeanor and presentation.

Carney was a court-appointed lawyer. Technically, his client was an indigent defendant. Back in 2011, when Whitey was apprehended in Santa Monica, they discovered $820,000 hidden in the wall of his apartment. The money was confiscated by the government. When Bulger was dragged back to Boston, he was taken before a magistrate judge who asked, “Are you able to afford an attorney?” Said Bulger, “I would be if you gave me back my money.” It was an uncharacteristically funny line from Whitey, a man not known for his humor.

The belief by many in law enforcement—and some of Bulger's former associates—was that he had hidden money away in secret Swiss accounts and elsewhere, a bounty that had been estimated, in some accounts, to be in the tens of millions. Nobody could prove it, so Bulger, like all U.S. citizens, had the right to an attorney, paid for by you the taxpayer.

Jay Carney was a well-known figure in Boston legal circles. Like many defense attorneys, he had served time on the other side as an assistant district attorney, in his case for five years in Middlesex County. In 1988, after forming his own criminal defense law firm, he became associated with some high-profile cases, including the trial of John Salvi, who had committed murders at a number of Boston-area abortion clinics, and Tarek Mehanna, a terrorism case. Because of these clients and others, Carney had become known as “the Patron Saint of Lost Cases.” As with the Bulger case, Carney's clients often faced seemingly insurmountable odds.

When first assigned the case, Carney claimed to know very little about Whitey Bulger. Although Bulger had been a major media story for two decades, like most lawyers who handled large, complicated criminal defenses, Carney kept his nose to the grindstone. Part of the reason the Bulger case took as long as it did to come to trial—two years from the time of Whitey's arrest to the opening of the trial—was that the defense needed the time to absorb not only the totality of the charges against their client, but also the criminal history surrounding his case.

Carney began his opening statement by introducing himself and his co-counsel, Hank Brennan, to the jury. “When we were appointed by a judge
in this court to represent [James Bulger], we knew we had a challenging task. We hope when we present our case to you, you will see the results of all the work we have done to dig into this case and present to you what the truth is.”

Carney's manner of speaking was deliberate, as if he were talking to a small child. He thanked the jury for their service, a common gambit among lawyers designed to give the men and women of the jury the impression that their service was highly valued.

Generally, trial lawyers are hyperattuned to the vagaries of human attraction. They know that jurors can be swayed simply by whether or not they like one particular legal advocate over another. In a trial that was expected to last many weeks, the lawyers and jurors in this case would be spending much time together. It was incumbent upon the lawyers to establish a rapport with the jury, to not alienate or grate upon an individual so as to turn them against your case simply because they didn't like you.

It was clear from the start that Carney was going to take his sweet time. In the weeks and months leading up to the trial, he had noticed, and frequently commented upon in court, that the strategy of the prosecution seemed to be to hold back information and then dump it on the court in large volumes at the last minute. At issue was what is known in the trade as “discovery material”—confidential documents, memos, internal law enforcement reports, court transcripts, etc.—that the government is obligated by law to turn over to the defense. The prosecution's strategy seemed to be to overwhelm with an avalanche of evidence anyone hoping to make sense of the charges against Bulger, an approach that Carney and Brennan, as a matter of principle, seemed determined to counteract.

“You know,” said Bulger's public defender, “listening to Mr. Kelly's opening statement kind of reminded me of a restaurant and how when you go to a restaurant, you're served a meal, and the food has been prepared in the kitchen. By the time it gets to your table, there's a beautiful presentation. A lot of time has been spent on it, to make it look as appealing as possible. And that's sort of like what it is when the government presents a witness in the courtroom. They've spent a lot of time with the witness, they've done a lot of negotiating with the witness, things have evolved with the witness, and then it leads to the point where the witness
is ready to come to the courtroom and testify, just like food when it's brought to your table.

“What Hank and I are going to do is try to show you what happens in the prosecutor's kitchen before this witness gets out here and tells you things that went on that Mr. Kelly didn't tell you, and the factors that shaped not just the witness, but more importantly, what the witness is going to be saying to you.”

In keeping with the food and dining metaphor, Carney proceeded to set the table, which in his case involved laying out the historical framework that created the foundation for the Bulger years.

He began his narrative in the early 1960s, describing how FBI director J. Edgar Hoover had become obsessed with building criminal cases against the Mafia. Noted Carney, “This became a nationwide crusade on the part of every prosecutor and the majority of the FBI agents working for the federal government.” Carney described how the FBI and the U.S. attorney's office—the agencies in the government that investigate and prosecute criminal cases—come under the heading of the U.S. Department of Justice, with its headquarters in Washington, D.C. At the time, said Carney, “The success of people working for the Department of Justice was often dependent upon how successful they were in getting indictments and convictions of the Mafia. If they were successful, they received pay increases, promotions, bonuses, awards. This was the number-one priority.”

This mandate, noted Carney, is what led to the creation of the FBI's Top Echelon Informant Program. In Boston, a master cultivator of criminal informants was Special Agent John Connolly, and the man who benefited most from Connolly's efforts was Jeremiah O'Sullivan, the top organized crime prosecutor in town.

So far, so good: Carney was providing a historical context that would, perhaps, make it possible for the jury to comprehend Bulger's relationship with the criminal justice system. But then the defense lawyer segued into a couple of points that had longtime followers of the Bulger story reeling, as if they'd just been slapped in the face with a dead fish:

“Now, James Bulger never ever, the evidence will show, was an informant for John Connolly. There were two reasons for this. Number one, James Bulger was of Irish descent, and the worst thing that an Irish person
could consider doing was becoming an informant, because of the history of the Troubles in Ireland. And that was the first and foremost reason why James Bulger was never an informant against people.