Taking the Stand

by Alan Dershowitz

  In appreciation for my work on his case, the colonel sent me an American flag that had been “flown for 9 minutes and 11 seconds over the 3rd Brigade Combat Team Head Quarters, Tikrit, Iraq” near a flag that was “hanging inside of Building #7 on the morning of 11 September 2011.” In his letter accompanying the flag, Colonel Steele explained that a policeman ran into Building Seven right after the attack, to help get everyone out. On his way out, he saw the flag in the atrium and took it. “The building came down about ten minutes later.” The policeman gave the colonel the flag to take with him into combat. Colonel Steele ended his letter with the following words: “My sincerest thanks, Alan, for all you have done for me and for the men of the Rakkasans.” The flag stands in a place of honor in my home office, as a reminder of those who have risked their lives to defend our liberties.

  The complex issues surrounding the war against terrorists play out not only on the battlefields of Iraq and Afghanistan, but in Israel and Gaza as well. I stand ready to defend Israeli soldiers and commanders who have been falsely accused of killing Palestinian civilians in their efforts to protect Israeli civilians from terrorist rocket attacks. In December 2011, I traveled to The Hague in an effort to persuade the prosecutor of the International Criminal Court not to bring charges based on the deeply flawed “Goldstone Report,”23 the conclusions of which Richard Goldstone himself subsequently reconsidered.24 The prosecutor decided that he lacked the jurisdiction to bring such charges and he thanked me for my input.

  I have also represented the Mossad in its efforts to prevent prosecution of its agents by foreign governments. Several Mossad agents were captured on Cyprus and accused of spying for Turkey. It wasn’t true. They were watching Palestinian terrorists who were planning an attack against Israeli civilians. I helped secure their release. Shortly thereafter, I received a hand-delivered letter of thanks from the head of that shadowy organization, which included the following:

  I remember the energy you showed when we came to you seeking both advice and action. You threw yourself into the fray and showed every possible willingness to give us both your time and renowned counsel.

  As you know, there is no greater “Mitzva” in Judaism than “Pidyon Shevuyim”—prisoner release. And nevertheless, not every person would be prepared to be associated with “one of us.” So be it you, for your part, acted in the best and noblest of our traditions.

  We wish you well; we thank you for what you did and what you were willing to do. May we all live to see the day when a profession such as mine gives way to more pleasant occupations. There is still some way to go before this comes about.

  Tragically, the world is still far from a time when those brave men and women who serve in the United States and Israeli armed forces and intelligence services can pursue “more pleasant occupations.” Until that day arrives, I will always remain available to lend my time and counsel in support of their noble, risky, and controversial efforts to combat evil.

  HELPING THE PROSECUTION KEEP AN FBI MURDERER IN PRISON

  For much of my career at Harvard, the second most influential political family in Massachusetts (after the Kennedys) was the Bulger family. “Billy” Bulger was the president of the Massachusetts Senate, the president of the University of Massachusetts, and the leader of the state Democratic Party, to whom presidents, governors, and other movers and shakers paid homage. Billy presided over the annual Saint Patrick’s Day Parade celebration, at which he roasted friends and enemies, and at which attendance was mandatory for local politicians, as was a phone-in from national leaders, including the President of the United States. Billy’s older brother “Whitey” was the mass-murdering leader of the notorious “Irish mob” in the Boston area and was responsible for dozens of cold-blooded murders.

  For years, the media portrayed the Bulger brothers as if they were stock characters in a B movie: the “good” brother, Billy, who could do no wrong, versus the “bad” brother, Whitey, who could do no right. I always wondered about this media-driven dichotomy. It made for a good story, but was it true? I began to research and write about the connection between the Brothers Bulger. What I discovered was a symbiotic, rather than an antagonistic, relationship between them.25

  Neither brother would have succeeded without the other. Together they controlled Boston politics and crime—which became largely interchangeable—for decades. The conduit between them was a corrupt FBI agent who grew up in their “Southie” neighborhood, John Connolly, who was Billy’s friend and protégé.

  I first encountered the Bulger corruption when a client of mine was forced to make a quarter-million-dollar payment to Billy in order to get permission to build a high-rise structure in downtown Boston. When I wrote about this alleged extortion, I received a late-night phone call warning me that “an attack on Billy is an attack on Whitey so watch your back.” It was widely understood that criticizing the “good” Bulger brother might provoke the wrath of the “bad” Bulger brother. Whitey was known to threaten Billy’s political critics, as he did when he confronted one of Boston mayor Ray Flynn’s political operatives with the following warning: “You’ve been running down my brother. I won’t have that.”26 Whitey threatened to kill Boston Herald columnist Howie Carr, who, like me, exposed the connections between the Brothers Bulger.

  Despite these threats, I continued to write and speak about the connection, thereby antagonizing much of the Boston establishment, which had a stake in perpetuating the myth of the good Bulger brother, with whom they had to work and to whom they had to show deference. This establishment included “good government” political figures, such as Governor Michael Dukakis, who should have known better. It also included several prominent prosecutors, who also should have known better.

  It was widely known in political and law enforcement circles that those who helped Whitey evade justice were rewarded by Billy with jobs and other forms of political patronage, while those who went after Whitey were punished. Every effort to bring either Billy or Whitey to justice was thwarted by FBI agents who were on the take and prosecutors who feared retaliation.

  Billy Bulger had managed to exploit the justice system to protect his brother. His influence extended to the highest levels of government, including the speaker of the house, John McCormack, the director of the Bureau of Prisons, and several state and federal prosecutors and judges who helped Whitey get out of prison and stay out of prison.27

  I’m a defense lawyer. Unlike many current defense lawyers, I never served as a prosecutor, though I advise my students who want to become defense attorneys to work in a good prosecutor’s office for a few years. Also unlike some defense attorneys, I admire good prosecutors, who do their jobs ethically and professionally. The adversarial system of justice requires zealous prosecution as well as zealous defense. Good prosecutors are the “gatekeepers” of justice: They decide which of the many cases that come to them to prosecute, which not to prosecute, what charges to seek, when to plea-bargain, and how high a sentence to recommend. Bad prosecutors—those who base such critical decisions on political, personal, financial, or other corrupt considerations—can do enormous harm to our system of justice. I’ve been privileged over my career to know some extraordinary prosecutors. I’ve also been privileged to help expose some corrupt prosecutors, policemen, and FBI agents.

  The case of John Connolly was an example of corruption in high places. In that highly charged case, which was the subject of the semifictional film The Departed,28 I helped an excellent prosecutor keep the corrupt FBI agent in prison. The prosecutor who asked for my help is the state attorney of Dade County, Florida. Katherine Fernandez Rundle replaced Janet Reno in 1993, when President Clinton appointed Reno to serve as attorney general of the United States. She has been repeatedly reelected and served with distinction since.

  John Connolly was a high-ranking FBI agent in Boston, who had grown up in the “Southie” neighborhood of Boston along with Whitey and Billy Bulger. Billy served as president of the Massachusetts Senate and then
president of the University of Massachusetts before he was forced out of office by then governor Mitt Romney, who threatened to put me and Howie Carr on the board of the university unless Billy resigned, which he did.

  During the reign of the Bulger brothers, Billy served as a sort of “godfather” and Whitey as the enforcer of a systematically corrupt political, economic, and legal system.29 Nothing got done—no large buildings were constructed, no important jobs secured, no political appointments made—without “tribute” being paid to the godfather. If anyone crossed Billy, he had to worry about being literally killed by Whitey. If anyone crossed Whitey, he had to worry about suffering political or economic death at the hands of Billy. For example, when a state trooper stopped and searched Whitey at Logan Airport, finding a large bag filled with cash, the trooper found himself demoted, disgraced, and ultimately driven to suicide. And when Whitey was about to be indicted, Billy’s protégé John Connolly tipped the gangster off, allowing him to escape and become a fugitive for sixteen years, during which time the “good” Bulgers—his brothers and sisters—communicated with him, moved money for him, and helped him to avoid capture. As Billy Bulger understated it: “I hope that I personally am not helpful to anyone against him.” The “good” Bulger said this after knowing that his bad brother had murdered dozens of men and women in cold blood and was ready to murder many more to preserve his freedom. John Connolly also tipped off Billy—the good brother—to the details of an investigation that targeted him for extorting a quarter-of-a-million-dollar bribe from the Boston builder I had represented.

  But these were not the only tip-offs John Connolly provided the Bulgers. He gave Whitey the names of “stool pigeons” who were about to inform or testify against him—in other words, those who had to be “silenced” to protect Whitey and his colleagues. Several people were murdered by Whitey as a direct result of Connolly’s information.

  In exchange, Connolly received bribes amounting to well over a quarter of a million dollars in cash, as well as many valuable gifts, plus a lucrative retirement package from brother Billy.29 He claimed he also received information from Whitey about Whitey’s competitors in crime—the Italian mob—but it is doubtful that law enforcement got much in return for giving Whitey not only a license to kill but a road map as to whom to kill. Central to this corrupt deal was the good brother. As Whitey’s biographer put it:

  Brother Bill had served as the enabler while Whitey was in prison, continually lobbying Congressman McCormack on Whitey’s behalf. With the FBI, Bill Bulger was also a presence, seeming to hover over everything. He was a mentor to John Connolly, and Whitey’s Winter Hill Gang certainly believed that the link with Bill Bulger was the very reason John Connolly had reached out to Whitey.

  The deal made sense.… Connolly brought something to the table that no other agent could—Southie … and a close relationship with brother Bill Bulger. Connolly adored Bill Bulger. His wife said that after they’d moved back to Boston in 1973 her husband John “frequently socialized” with Bill Bulger at a private club and also in Bulger’s home. Marianne Connolly observed that Bill Bulger had had a “significant influence” on her husband.30

  That influence included making sure that Connolly always had Whitey’s back, which included the leaking of secret information to Whitey about FBI informers who needed to be killed.31 One such murder was committed in the Miami area, and John Connolly was successfully prosecuted by the state for conspiring to commit it. The problem was that several years had passed between the murder and the prosecution, and Connolly had a plausible statute of limitations argument on appeal.

  I was asked by State Attorney Rundle to consult with her appellate lawyers and to prepare them for what they expected would be a grueling argument. I worked with them, and with federal prosecutors in Boston, on the appellate brief. I also conducted a “moot court,” in which I played judge and asked the hardest questions I could come up with. The prosecution won the appeal.32 It was the first time I recall cheering when I heard that the prosecution had won and the conviction of the defendant had been affirmed.

  There is nothing more corrosive to the administration of justice than corrupt law enforcement officials (except, perhaps, corrupt judges, several of whom Billy Bulger had appointed to “his” bench). The Bulger gang is now history. Whitey and Connolly are in prison, probably for the rest of their lives.33 Billy is “retired” from politics but remains widely admired by some in Boston, who still can’t face the reality that without the help of the “good” brother, there never would have been the mass-murdering bad brother—and without the complicity of some high-ranking and “good government” public officials, there never would have been a corrupt and corrupting good brother.34

  DEFENDING A MAN WHO ADMITTED HIS GUILT

  One murder case that involved international politics, diplomacy, and law required me to represent a defendant I knew for certain was guilty. The myth that guilty clients, even those who have committed murder, will confide their guilt to their trusted lawyer is widespread in literature and reflected in legal rules of confidentiality that encourage a relationship of trust between lawyer and client.35 The reality is that guilty (as well as some innocent) clients don’t trust lawyers with their dark secrets. Most believe that their lawyer will work harder for innocent defendants than for guilty ones, so they claim that they are the totally innocent victims of a horrible injustice. They admit nothing.

  Only one client who was accused of a killing admitted to me that he was guilty. He really had no choice, since the very fact of his guilt was an essential element of his defense. This was the Jewish Defense League murder case discussed earlier. Not only was my client guilty of having participated in a crime that resulted in the death of a young woman, he also—it turned out—was a government informant who was providing information to the police as to what he and his group were doing.

  When I first undertook the pro bono representation of Sheldon Siegel, he faced a possible death sentence for causing the death of Iris Kones by making the smoke bomb that killed her. He initially assured me he was innocent. I suspected that he had some involvement with the crime, but I had no idea that he was informing against the Jewish Defense League at the same time that he was making bombs for them.

  Informers are a peculiar lot, often undecided about which side they are on—other than their own side. Siegel was committed to the ideology of the JDL, including their use of violence to make their point. But he was also desirous of protecting his own head and he knew he was vulnerable to prosecution for the bombs he had constructed that had been used against other Soviet targets. He hoped to avoid prosecution by providing the government with selective information about his JDL colleagues and their plans. He also hoped the JDL would never find out that he was playing both sides against the middle. He didn’t even tell his own lawyers, until we figured it out. He then told us the whole story, including his role in the death of the victim. He also told us that in order to protect himself against being double-crossed by the police, he had surreptitiously recorded some of his conversations with them on a tape recorder hidden in his car, where they often talked. The tapes confirmed his claim that the police had made him certain promises, but they did not include the crucial promise that if he told them who planted the bomb that killed Iris Kones, they would never use him as a witness against his JDL colleagues. Siegel told us that this promise had been made while they were talking on the street, where he was unable to record it.

  I devised a tactic designed to get the police officer—Sam Parola, who grew up in the same neighborhood Siegel and I did—to admit that he had made that promise. First I pretended we had no tapes, and the officer, confident he could lie without fear of recorded contradiction, denied making any promises.

  Q: Did you ever promise him that he would never have to be publicly revealed if he gave you the information in the Amtorg case?

  A: No, sir.

  Q: In regard to information that you were seeking from Mr. Siegel relative to a
shooting into the Soviet Mission, did you at any point tell him that if he gave you information about that, that you would never call upon him to testify at any trial or ever reveal him as an informant?

  A: Oddly enough, Mr. Siegel volunteered that information to me.

  Then I questioned him by reading from the actual transcript of the tapes, asking him whether he had ever had “the following conversation with Mr. Sheldon Seigel”:

  Q: “You’re not going to jail on either one of them, and if you ever say that I said it, I’m gonna deny it and I’m gonna meet you some fuckin’ night, and I’m gonna run you over with a truck.”

  The police officer did not immediately understand what was happening.

  A: No, sir, I deny that.

  Q: You are certain that you never said anything about running him over with a truck?

  A: I never said anything like that.

  I continued to press the witness. I asked him if he had made the following statement:

  Q: “You ever fuck me up like that when I tell you something, you ever rat on me, I will fuckin’ brain you.”

  Parola became a little less certain about his answer:

  A: I don’t believe I made that statement.

  As I continued to read Parola’s recorded words back to him, he began to realize that we might have him on tape, saying things he had sworn he didn’t say. Parola’s relaxed composure began to change. He asked for water. His face grew pale. His fingers trembled. He almost dropped the glass of water.