Where the Bodies Were Buried (8 page)

“The second reason was a practical one. James Bulger was not deeply tied to the Italian Mafia. You'll hear that La Cosa Nostra centered on people of Italian, in particular, Sicilian descent. They wouldn't let someone who wasn't of that background be knowledgeable about what was going on in their activities. They could pal around, they're like people who are in the same business, they can certainly be seen together and hang out together, but Bulger would never be provided with information that he could give, even if he wanted to. So Bulger was never an informant.”

The argument that Bulger had nothing of value to give the FBI because he was not a member of the Mafia was at least conceivable. But to say that he could not be an informant simply because he was Irish sounded like a barroom boast, or a cruel joke, especially so to criminals currently incarcerated around the United States and in the old country who were there because an Irishman cut a deal with the authorities to save his or her own skin, and turned “state's evidence” against them. In the world of organized crime, becoming a rat is a survival mechanism unbound by race, color or creed.

The next bombshell that Carney threw out to the jury was to admit, on behalf of his client, to most of the charges in the indictment. “Yes,” he told the jury, “James Bulger was involved in criminal activities in Boston. He was involved in illegal gaming, meaning selling football cards or other betting games and collecting the proceeds, which is illegal. It's called, in the business, bookmaking. He also lent money to people at very high rates. It's called loan-sharking. He was involved in drug dealing. These crimes, that's what he did.”

Bulger had never before admitted publicly to any of these crimes, especially drug dealing. It was an astounding concession. It was not immediately clear why Bulger's defense team was making it, how they thought it would in any way enhance his chances for an acquittal, but Carney seized upon Bulger's admission of criminal wrongdoing to make a larger point. And that point was that for you to find Whitey Bulger guilty of anything, you would also have to find guilty his partners in crime—the U.S. Department of Justice.

The partnership started with John Connolly, said Carney, whom Bulger paid hundreds of thousands of dollars over the years for inside information on rivals in the underworld. Explained Carney, “Connolly was known nationwide as an extraordinary FBI agent, primarily because of the informants he developed. He had twenty Top Echelon Informants who were providing information against the Mafia in Boston and in Providence. He was able, with the assistance or the leadership of Jerry O'Sullivan, to obtain indictments and secure convictions. John Connolly was the FBI golden boy. . . . But what happened is that all of this acclaim, these raises, these promotions, these awards went to his head. John Connolly thought he was a rock star, and he became greedy.”

To anyone who had closely followed the Bulger story, this was also surprising. It was always believed that Bulger and Connolly were close not only professionally, as a corrupt team, but personally, as friends. Some, including Connolly, believed that Bulger might even use his trial as an effort to exonerate his friend, who currently languished in prison on a murder rap. Already, on the first day of the trial, it was clear why the defense would not be calling “the Scapegoat” to the stand. It was their intention to use the disgraced agent as a tactical prop and throw him under the bus.

As Carney explained it, slowly and methodically, Connolly was not the sole underwriter of the partnership with Bulger; he was also its chief mythmaker. Carney explained to the jury how Connolly set about creating a fictional informant file to justify his relationship with Whitey:

“Procedures that were to be followed to set up an informant, as set up by the FBI, were never followed. There wasn't a contract signed by James Bulger. He didn't give his fingerprints and photograph to the FBI, as was required. But Connolly wanted people to believe that James Bulger was an informant. He never told Bulger, but he created a file, Connolly did, so he could point to it and say, This file contains the information I'm getting from James Bulger.

“The reason Connolly created this file was just to cover up the fact that he was being seen with Bulger so often, that he was meeting with him when Bulger would be providing him with money. His file grew to hundreds of pages. But when people, supervisors, in the FBI looked at this file, they said, the information in here is of little value. It's essentially worthless. Plus,
it appears to be information, junk tips, that were provided to other FBI agents, because the information duplicated what was in these other FBI agents' files. . . .

“Supervisors would come from Washington and look at this and say, This person isn't a Top Echelon Informant. This information isn't valuable. The information in this file has not led to a single prosecution of anybody.”

Part of Bulger's defense, Carney seemed to suggest, would be to show that whenever anyone in the Justice Department questioned the Bulger partnership, they were aggressively shut down by Connolly's organized crime squad. Thanks to Connolly, Bulger had protectors at the highest levels. Who were these protectors? Some would be named—Connolly's supervisor with the organized crime squad, John Morris; Jeremiah O'Sullivan, head of the New England Organized Crime Strike Force; and others. But the conspiracy was intentionally left open by Carney to form a gaping crater, into which could be thrown the names of Bulger enablers in the Justice Department who had since died or slinked off into retirement.

IN MAJOR ORGANIZED
crime trials, juries and the public are sometimes shocked to discover that deals have been made with killers and criminals of the worst kind. In the United States, this is how criminal cases are routinely made. Since at least 1968, when the Organized Crime Control Act was expanded upon by the law-and-order president, Richard M. Nixon, the use of informants had been a staple of state and federal law enforcement. This technique of using criminals to convict other criminals was born out of a statute within the Organized Crime Control Act that led to the creation of a federal Witness Security Program (WITSEC), more commonly known as the witness protection program. Criminals who had been caught now saw themselves as having an alternative to prison: a new life with a new identity, hidden away in some remote recess of the country.

The witness protection program reinvigorated the era of the snitch. It began a long period in which traditional organized crime syndicates, most notably the American Mafia, were devastated through courtroom prosecutions.

In the Bulger case, the prosecutors would be showcasing at least two
snitches whose body count was staggering. Steve Flemmi had pleaded guilty to ten murders, though observers with knowledge of the Boston underworld suspected there were more. The other most murderous witness was John Martorano, a gangster whose resume included twenty murders.

Carney and Brennan knew that the jury would likely be repulsed by these two men. In movies, gangsters are sometimes charismatic figures when played by actors like Robert De Niro and Al Pacino, but in real life, they are moral ciphers, a fact that defense attorney Carney would buff and shine and put on display for the jury to ponder as often as possible.

“At this trial,” said Carney in his opening statement, “you will hear a lot about John Martorano. It would be fair to say he is the scariest criminal, violent psychopath in Boston history. He would kill people almost randomly, just as the mood befits him. He would kill people because they crossed him. He would kill people because he wanted to get their money. He would kill people because he didn't want to pay a gambling debt. He would kill people as easily as he would order a cup of coffee in a store.”

For Carney and the defense, Martorano was the key to the government's case, even more so than Bulger's partner Steve Flemmi. Because Martorano had been the first former member of the Winter Hill Mob to come in and strike a deal. It was his cooperation that set off a chain of events that would lead, all these years later, to everyone currently sitting in a courtroom overflowing with spectators and media.

Martorano, Carney would allege, was the first to figure out what the government wanted and needed. “Remember,” he told the jury, “at this point, Jim Bulger was gone. By this point years had passed . . . and there was a question if Bulger would ever be seen again. Rumors were that he had had plastic surgery, doesn't even look the same. There were other rumors of Bulger being hidden in a small village in Ireland where they're protecting him. Other people speculated that maybe he's dead of natural causes. But most people thought they'd never see him again.

“But the government had as its primary target John Connolly and had to find a way to get evidence against Connolly and tie Connolly to Bulger.

“And then Martorano was educated and learned that he could be the bridge from Bulger to Connolly.”

Carney noted that Martorano had a problem: he had never met John
Connolly. How on earth was he going to link Connolly to Bulger when he'd never been in a room together with the two men? That was rectified when it was explained to Martorano by his attorney that if he testified about conversations he had with Bulger about Connolly, that could be introduced as evidence against both those men. “That became Martorano's ticket out of this mess,” Carney told the jury. “The more corrupt that he could make Connolly and Bulger, the better the deal that Martorano could get.”

The witnesses' state of mind, noted Carney, was all-important. In a criminal case, state of mind is more than idle speculation; it is often the most devastating evidence of all. Judges give fine-tuned instructions to juries on the legal ramifications of state of mind. What is a person thinking? What are they planning? What is on his or her mind as they set about to knowingly commit a criminal act?

With Martorano, his state of mind was informed by what he knew of how the game was played, and it was this knowledge, stated Carney, that would be the key to judging his credibility as a witness:

“John Martorano knew how a gangster could make a deal with the federal government and get extraordinary benefits if he were to provide testimony against others. He knew because he had a good friend who had gone through the process. His good friend was Joseph Barboza. Barboza was the mentor of Martorano. And so what Martorano wanted to do for himself was what Barboza did for himself. And like Barboza, Martorano was just as much a psychopath, a soulless killer without a conscience.”

Barboza
.

The name echoed throughout the courtroom and down through the ages, rustling the graves of dead mobsters throughout the region.

To anyone with a historical memory of Boston underworld crime, the name sent chills down the spine. Barboza was a thug and indiscriminate killer who, in the 1960s, made a deal with the FBI. He represented the Original Sin, the first mutant offspring of a law enforcement strategy that would later give birth to Bulger.

Barboza was the “rosebud” of the Boston underworld. If Carney and the defense team could link the Bulger case to the Barboza era, they would be cutting open the guts of the city's great whale of corruption. The innards would spew forth a legacy of dirty dealings within the criminal justice
system in New England that would devastate the region's image of itself as a cradle of liberty and justice.

Carney sought to explain to the jury the history of Joe Barboza and his deal with the DOJ back in the 1960s. He explained how Barboza's criminal partner, Vincent “Jimmy the Bear” Flemmi, brother of Steve Flemmi, had initiated Barboza into the ranks of government informants. Jimmy Flemmi was himself a Top Echelon Informant. Together, Jimmy Flemmi and Barboza had committed a murder and then used their roles as informants to create a false prosecutorial narrative. To protect Jimmy Flemmi, Barboza lied in court. As part of his deal with the government, he admitted his own role in the murder but then framed four men who were innocent of the crime.

Carney was talking about the case that had led to the wrongful conviction of Joe Salvati. His presentation of these facts to the Bulger jury was clumsy and confusing, and it lacked the appropriate drama. The lawyer's bloodless delivery belied the shock of what he was saying: Barboza had committed the murder of small-time hood Teddy Deegan along with Jimmy the Bear Flemmi. Then, with the blessing of FBI agents, he took the stand and identified four innocent men. He committed perjury—lied on the stand—so that the government men would have their convictions.

For Barboza, it had been a sweet deal. He was allowed to lie on the stand to protect his criminal partner and friend. By doing the bidding of a corrupt system, he was set free. And his diabolical lie was kept buried for generations.

This, claimed Carney, was the lesson learned by John Martorano, an understanding of how the game was played based on historical precedent—the same historical precedent that lay at the heart of the Bulger prosecution.

The first day of the trial ended in midafternoon. The spectators, attorneys, and reporters spilled out onto the sidewalk in front of the courthouse. The microphones and cameras were in position to receive the various representatives of the case.

The trial was under a gag order, imposed by Judge Casper, which prohibited the lawyers from speaking with the press about the case. The prosecutors stayed out of the media glare altogether, but, occasionally, Carney or Brennan would stand before the microphones and offer innocuous
statements, though mostly what they said was “I am prohibited from answering your question.” It was a pointless exchange designed, perhaps, to expose the absurdity of the law, which the defense team had unsuccessfully sought to have rescinded by the judge.

Jay Carney stood before the media and basked in what he perceived to be the glow of a scintillating opening statement. Which was only partly true. For anyone who had followed the Bulger saga and hoped that the trial would tell the full story, Carney's opening statement had its moments. His detailing of the historical context for the charges against Bulger was potentially groundbreaking. His inclusion of Barboza and how the lessons of his deal with the government had not been lost on an entire generation of gangsters in Boston was the overarching narrative that many of us had been hoping would be brought to bear.