The judge’s ruling on the defense team’s proposed witness list turned out to be one of the final indignities for the defense in a proceeding that had consistently not gone their way. Carney and Brennan came into this hearing with a list of thirty proposed witnesses that included people like Joe Salvati and Michael Albano.
Some of the names on the list were people designed to impeach the testimony of individual witnesses in the government’s case, but others were there to give credence to the defense contention that Bulger’s criminal career was the consequence of corruption and collaboration from within the system, and that it went back half a century. The government had been objecting to this argument all along, with support from Judge Casper, and it seemed unlikely that the parameters of the trial would change now.
Said Wyshak, “I mean, really—Joe Salvati, Your Honor? Joe Salvati?”
With a tone of incredulity, the lead prosecutor stood before Casper at the late afternoon hearing and sought to discredit and derail the defense counsel’s witness list and therefore their entire case. He was largely successful. When the hearing was over, there were a total of twelve people that the judge was going to allow the defense to call as witnesses for their case.
Whatever last semblance of hope there was that the defense would be able to make a grandiose case that encapsulated the full sweep of the Bulger era had been crushed, once and for all.
Still, there were a few witnesses to be called who promised to shed new light on the Bulger fiasco, one of them being Robert “Fitzy” Fitzpatrick, the former assistant special agent in charge (ASAC) of the FBI’s Boston division from 1981 to 1986.
I had come to know Bob Fitzpatrick well since the summer of 2011, when Bulger was apprehended in Santa Monica. Around that time, Fitzpatrick published a memoir about his experiences in the Boston division of the FBI. The book was called Betrayal: Whitey Bulger and the FBI Agent Who Fought to Bring Him Down. A scathing insider’s account of the FBI’s duplicitous efforts to protect Bulger and Flemmi, the book stirred up controversy and enmity among former FBI agents and members of the Boston U.S. attorney’s office who had been on the job during the years of the Bulger fiasco.
After reading Betrayal, I contacted Fitzpatrick and we began an ongoing friendship based primarily on a desire to understand how the Bulger era ever could have been possible in the first place.
I met Fitzpatrick for the first time at his home in Rhode Island, a bucolic setting overlooking Narragansett Bay. Having read his book, I knew he’d been through hell in his efforts to challenge the FBI’s insistence on protecting Bulger and preserving his status as a Top Echelon Informant. After years of making a pest of himself, and after an exemplary twenty-one-year career, Fitzpatrick was drummed out of the bureau a few years before becoming eligible for a pension.
In his early seventies, still vigorous, with skin and hair permanently bleached by the ocean air and sun, Fitzy was the classic G-man in retirement. At his home office in Rhode Island, he dug out old files on the Bulger case; we traded information and began constructing a narrative that might explain how Whitey had been able to remain in power for so long, even though, during the 1970s and 1980s, he was suspected of being involved in many murders.
“At the time,” said Fitzpatrick, “I couldn’t see it. Bulger was being protected by forces beyond my comprehension. I knew he was being protected, of course. Every time I tried to challenge the in-house position on having a guy who was himself a mob boss—a real no-no as far as confidential informants are concerned—I received pushback at every level. But it took a long time for me to begin to see the big picture. Probably not until the Wolf hearings and the various trials that came after that.”
One of the reasons that Fitzpatrick ran into problems in Boston had been simply that he was an outsider. In 1981, FBI headquarters in Washington, D.C., made the decision to transfer Fitzpatrick from his posting in Miami to Boston, where, as ASAC, he would be second in command to Lawrence Sarhatt, who was the SAC of the entire Boston division.
Specifically, Fitzpatrick was sent to Boston to sort out what had become a nasty jurisdictional dispute between the FBI and other law enforcement agencies in the area, namely the Massachusetts State Police. There were accusations being made that the FBI’s C-3 organized crime squad was interfering with other agencies’ investigations into Bulger and Flemmi’s activities.
Part of Fitzpatrick’s mandate involved meeting Bulger, assessing his “suitability” as an informant, and filing a report with the supervisor of the Boston office.
“It was Morris who drove me to Bulger’s condo in Quincy,” said Fitzpatrick. “All the way there, he’s telling me how much I’m going to like this guy Bulger. He’s building him up, so much so that I became suspicious. So we get to the location, Morris stays in the car. I go to Bulger’s door. He answers. He’s wearing a Boston Red Sox cap and sunglasses, even though he’s indoors. I mean, they say the eyes are the window to the soul, and right away, I can’t see this guy’s soul.” Fitzpatrick laughs, not so much with mirth but as if to say, What else can you do but laugh. “I put out my hand to shake his, and he ignores the gesture, leaves me standing there with my hand out. Oh, well, that’s not good.”
Fitzpatrick had dealt with many confidential informants in his career. He had been assigned to teach a course on the cultivation and management of informants, which is one of the reasons he’d been assigned to Boston to assess the Bulger situation. With Whitey, right away he saw that the signs were not good. Usually, an informant is solicitous when meeting someone higher up in the law enforcement chain of command. Explained Fitzpatrick, “Their entire deal with the government is based on their delivering the goods, so to speak. So they are often eager to convince you that what they have to offer is ‘singular information,’ as we call it. But with Bulger, it was the opposite. He was unfriendly bordering on hostile. He wanted to make it clear that he was the one in charge, not the other way around.”
Once inside the apartment, Bulger did not offer Fitzpatrick a seat. They stood in the kitchen. Fitzpatrick asked, “So, what are you doing for us?” Bulger launched into a long dissertation on how he would never testify in court and how he did not expect nor did he want to be paid. “I have my own informants,” he said. “I pay them for information. They don’t pay me.”
“I didn’t say much,” remembered Fitzpatrick. “I let him do most of the talking. And none of it was good, from my perspective. He was boasting that he was the boss of his own group, that he called the shots. After a few minutes of hearing this, I asked myself, What the hell am I doing here? I mean, clearly this guy thinks we work for him.”
If that weren’t enough to throw Fitzpatrick for a loop, all of a sudden, from another room in walks John Connolly. “He’s not supposed to be there. This was supposed to be a one-on-one between Bulger and me. Connolly knows that. It was improper for him to be there.”
The meeting lasted twenty minutes, then Fitzpatrick left and went back to the car. When he sat in the front seat, Morris asked, “So, what did you think?”
Fitzpatrick said, “I’m going to close him.”
Morris became deadly serious and said, “No, you’re not.”
Decades later, Fitzpatrick remembered the moment vividly, as if he could still feel the sting. “Morris was the supervisor of the organized crime squad, but he was under me. I was his manager. For him to say that to me was an act of insubordination. I was angry. But I let it pass. I was still new to the division, had only been there three months or so.” Fitzpatrick shook his head in dismay. “It was the first indication of what I was up against. And it got worse after that.”
After his meeting with Bulger, Fitzpatrick returned to the office and composed a two-page memo recommending that Bulger be closed as informant.
I knew after meeting Fitzpatrick that first time that he was the kind of source a journalist or writer dreams about, someone who has been inside a particular system and then, through some sort of cataclysmic experience, is cast out of
it. Bob had gone to Boston a die-hard FBI agent, a true believer and good soldier, and through his long process of disillusionment he was able to see things from a unique perspective, like a cult member who has left or been forced out of the cult.
On July 28, the evening before he was scheduled to take the stand, I met Fitzpatrick at Champion’s bar, near the Westin Copley Place hotel, where he had been booked into a room by the Bulger defense team. He was with his wife, Jane, whom I had met in Rhode Island. Jane went through Bob’s travails with him back in the 1980s, when he was ASAC, and also during his extended and acrimonious parting of ways with the bureau.
I said to Bob, “I hope you’re ready for this. Turns out you are pretty much the one and only major witness for the defense. You are their entire case.”
Fitzpatrick laughed at the obvious absurdity of his being called to testify on behalf of the defense. He was not a supporter of Bulger. “I hope they fry the bastard,” he told me when we first met in 2011. But he was sympathetic to the argument that Bulger had been protected by people within the criminal justice system and was therefore, in some ways, a creation of that system. And certainly Fitzpatrick welcomed the opportunity to explain to a jury and the public what happened to someone within the system who went against the grain.
“I’m hoping that testifying at this trial can maybe bring us some closure,” said Bob. “Because that’s what Jane and I have never had.”
“Well,” I said, “one question you will need to answer for yourself before you take the stand: was Bulger an informant or not?”
Bob had been following the trial; he knew the defense had been attempting to make the argument that Bulger never was an informant, that his role as a TE was a fictional creation of the FBI.
“He was an informant,” said Bob. “But that was the problem. He had been allowed by Connolly and Morris to believe that he wasn’t an informant, or at least that he didn’t have the obligations that were expected of someone who was an informant.”
Fitzpatrick remembered how every time someone from the bureau was taken by Morris and Connolly to meet Bulger, they were told, “Don’t treat him like an informant. He’s sensitive about that.” Apparently, Bulger’s handlers had finessed the relationship in such a way that for them to receive information from Bulger and Flemmi, they allowed Bulger to believe whatever he wanted to believe. Meanwhile, they hyped up his informant file with information sometimes pilfered from other files. Said Fitzpatrick, “Anything of value that could be used against LCN, that came from Flemmi. Thanks to Connolly, Bulger got equal credit for anything that came from Flemmi. That also went into Bulger’s file.”
I asked Fitzpatrick about a particular FBI summit meeting that I knew would come up. An earlier witness, Special Agent Gerald Montanari, had testified about a meeting that he attended, along with Fitzpatrick, in Washington, D.C., at FBI headquarters. The meeting had taken place in the wake of the Wheeler, Callahan, and Halloran murders, all of which stemmed from the alleged involvement of the Winter Hill Mob in the World Jai Lai operations. At the time of this meeting, the FBI field office in Oklahoma was investigating the Wheeler murder and had made accusations that they were not receiving full cooperation in Boston.
The D.C. meeting was attended by Boston supervisors, supervisors from FBI headquarters, and other representatives of the Justice Department. It was the most high-level meeting to ever take place on the issue of Bulger and Flemmi. At this meeting, everyone had a chance to speak his mind. If there was to be a point of recognition or understanding on the part of DOJ that the Bulger-Flemmi relationship was out of hand or had gone bad, now was the time to take action. Instead, the primary concern of those gathered at this meeting was to protect their informants and see to it that the Bulger-Flemmi connection was kept confidential.
I asked Fitzpatrick, “In retrospect, do you wish you had spoken up at that meeting?”
I could see the cloud come over Bob. I knew this was a sore subject. Even though Fitzpatrick’s book, Betrayal, portrayed him as a crusader and quasi-whistle-blower, I knew that in many ways Bob was haunted by the belief that he could have done more. His efforts to close Bulger as an informant had been met with such vehement resistance that, in some ways, he eventually became defeated and stopped trying. The meeting in Washington, for Fitzpatrick, had been the ultimate missed opportunity.
“I think by then, I had lost my faith in God,” he told me.
The loss of faith was no small thing. Fitzpatrick had grown up in a Catholic orphanage in New York City. Early in his young adulthood, he entered a pre-seminary with the thought of becoming a priest. He left to join the military and later the FBI, but issues of devotion and faith remained paramount in his life and career.
I let the subject drop. Bob’s daughter was also in town and had joined us at Champion’s; the gathering had turned into a family get-together for the Fitzpatricks rather than a pre-testimony strategy session. Bob was concerned about whether or not he was prepared for what he anticipated might be a vigorous cross-examination by the government. He’d had a couple of conversations with Carney and Brennan to discuss his testimony, but not as much preparation as he would have liked. “I’m not sure that I’m fully ready for this,” he said. But family matters had taken precedence; he would take the stand the following morning whether he was ready or not.
I left Fitzpatrick that evening with the hope that everything would be okay, though, in truth, neither Fitzpatrick nor I had any idea what he was likely to encounter in his time on the stand.
ON MONDAY, THE trial resumed with a renewed air of expectation. Partly, this was due to the fact that it was the first day of the defense case, time for a new angle on the evidence and fresh issues to be raised.
There were unresolved matters: For one, would Pat Nee be called to the stand? The defense was still claiming that they intended to call Nee, but the prosecution countered that for Nee to take the stand and be made to take the Fifth in front of the jury would be improper. The judge had been kicking this issue down the road but made it clear that it would need to be resolved shortly.
Another issue: would Bulger testify? On numerous occasions, Carney had been asked about this. If Bulger were to take the stand it would require scheduling issues. There would need to be a hearing to discuss what issues Bulger would be allowed to testify about. It would likely extend the trial another week or more. Not to mention that it would create a media frenzy that might require special security measures at the courthouse.
“My client has not yet made up his mind,” is all that Carney would say. If Bulger did testify, added Carney, he would be brought to the stand as their closing witness.
Meanwhile, Robert Fitzpatrick was brought into the courtroom and led to the witness stand.
“Good morning, sir,” said the judge.
“Good morning, Your Honor,” said the witness.
Hank Brennan, standing at the podium, asked, “Over the course of your life, sir, did you work in a particular area?”
“Yes, I did.”
“Could you tell the jury where?”
“In the FBI for twenty-one-plus years.”
Brennan led Fitzpatrick through his resume, which involved many significant cases, including, as a young agent, being at the scene of the Martin Luther King Jr. assassination; working undercover to infiltrate white supremacist organizations in Mississippi; and the ABSCAM political corruption investigation of the 1980s that led to the conviction of a sitting U.S. senator.
Fitzpatrick likes to talk; he’s an Irish storyteller whose stories lead from one story into another. Brennan seemed content to let the witness ramble, which brought vigorous objections from prosecutor Brian Kelly on the grounds of “unnecessary narrative,” “hearsay,” and “lack of relevance.”
Through it all, Fitzpatrick painted a picture of an FBI conspiracy to protect Bulger that boggled the mind. His efforts to close Whitey as an informant touched off a chain reaction within the Justice Department that only deepened and broadened, t
he more pressure he applied. The clearest indication of what Fitzpatrick was up against was when he attempted to get informant Brian Halloran into the witness protection program.
The South Boston hoodlum was being handled by the team of Special Agents Montanari and Brunnick. At the time, the investigation into the murder of Roger Wheeler in Tulsa was gaining steam. Halloran was claiming to have been originally given the task of killing the owner of World Jai Lai that was eventually carried out by John Martorano.
As ASAC, Fitzpatrick played a role in the management of Halloran as a potential informant against Bulger and Flemmi. “It was creating problems,” explained the witness. “I told headquarters the we were in a double-bind situation. . . . I continually voiced my opinion that you can’t have Bulger as an informant given the situation that I discovered in my initial meeting [with Bulger]. You have a guy telling you he’s not an informant, that he’s never going to testify. . . . That automatically in my opinion and according to the book would nullify him as a trusted informant. He may be an informant in name. You can call him whatever you want, but if the subject doesn’t believe that, as far as he’s concerned, that he’s an informant—it’s a rather unique and complicated way of expressing that a lot of informants don’t want to be labeled as informants, and they say they’re not. In some cases, they’re not; in other cases, they say that for ego gratification, for power, and for a host of other reasons they don’t want to be called an informant.”
With Halloran as an informant and potential witness against Bulger, Fitzpatrick had a more immediate reason for not wanting Bulger’s informant status to stand. “We couldn’t have Bulger giving us information on murder cases because he had now become the subject of a murder investigation.”
“Did you make that clear to Washington?” asked Brennan.
Fitzpatrick pointed out that in his memo to headquarters he not only made it clear, it was in the title of his report.
Where the Bodies Were Buried Page 41
