“And when Washington wouldn’t do anything to close [Bulger’s file], what did you do?”
“Well,” said Fitzpatrick, “in a quasi-military organization, there’s a fine line between insubordination, telling my superiors what to do, and making recommendations. I could express the fact that I didn’t like things, but I can’t come right out and say, ‘Close this guy.’ I can be very vocal, and I was. I could be adamant about my position, and I was. I explained to them that we have a problem here.”
“Did Washington follow your advice?’
“No.”
The FBI agents handling Brian Halloran felt they needed to get him off the street—pronto. “We thought he was going to get whacked, murdered,” said Fitzpatrick.
As ASAC, it fell on Fitzy to contact Justice Department New England Strike Force chief Jeremiah O’Sullivan, from whom he needed authorization to initiate Halloran into WITSEC, the Witness Security Program.
“So when you went over to see Mr. O’Sullivan,” asked Brennan, “what happened during that conversation?”
Fitzpatrick opened his mouth to speak.
“Objection!” shouted Brian Kelly.
“Sustained, sustained, sustained,” said the judge, drowning out the witness, who had started to give an answer.
Brennan said to Fitzpatrick, “Without saying what the conversation was, did you have a conversation with Mr. O’Sullivan?”
“I did.”
“Did he agree to put [Halloran] in the witness protection program?”
Again, Kelly was on his feet. “Objection. Leading.”
“Sustained as to that question,” said Casper. She turned to Brennan: “Do you want to ask him what did you do as a result of that conversation?”
Said Brennan to Fitzpatrick, “As a result of your conversation with Mr. O’Sullivan, was Halloran placed in the witness protection program?”
“No, he was not.”
“During that conversation with Mr. O’Sullivan, without saying what was said, what was your temperament?”
“Anger.”
“What was Mr. O’Sullivan’s temperament?”
Kelly stood to object, but Fitzy got his answer in before the objection: “He was adamant against.”
“Objection!” shouted Kelly. In making so many objections, the prosecution was following legal protocol, but they were also protecting the reputation of the Boston U.S. attorney’s office—their office—formerly led by Jeremiah O’Sullivan.
As Fitzpatrick recalled it, after getting no satisfaction from O’Sullivan, he sought to go over his head to William Weld, the U.S. attorney who would later become governor.
Asked Brennan, “When you went to see William Weld, was your objective the same as when you went to see Mr. O’Sullivan?”
“My objective was to complain that we’re not doing enough to put Halloran in the witness protection program and get him out of harm’s way.”
“When you spoke to William Weld about your complaints, was Brian Halloran put into the witness protection program?”
“No.”
“How many days after you spoke to William Weld was it that Mr. Halloran and Mr. Donahue were murdered?”
“Two days.”
With their key witness now dead, the FBI’s investigation of the murder of Roger Wheeler had been dealt a potentially insurmountable blow. In the wake of this fiasco, Fitzpatrick, on May 25, 1982, was called to the big conference in Washington, D.C., attended by Special Agent Montanari, as well as Jeff Jamar, unit chief for the Boston organized crime division; Randy Prillaman, the FBI’s national informant coordinator; and Sean McWeeney, chief of the bureau’s Organized Crime Section. At this summit meeting, which took place at FBI headquarters, inside the building of the U.S. Department of Justice, Fitzpatrick assumed there would be a discussion about the Wheeler and Halloran murders. Instead, the primary concern, as expressed by Chief McWeeney, was the New England Strike Force’s budding case against Jerry Angiulo and the Mafia.
Fitzpatrick was stunned. In his view, FBI headquarters should have been concerned that people were being murdered by gangsters whom they were operating as informants. Instead, their main concern seemed to be, How do we protect our informants from exposure?
The result of this meeting represented a watershed moment in the conspiracy to cover up the Bulger fiasco. In a memo written by ASAC Fitzpatrick, summarizing this meeting and a series that followed, it was stated: “It was mutually agreed that agents actively working the Wheeler case would coordinate information with SA Connolly’s sources so that this matter can be quickly and effectively resolved.”
In other words, headquarters was kicking the ball to John Connolly, a street agent, designating him to coordinate with Bulger and Flemmi, meaning they were setting up Connolly as a fall guy in the event of future exposure.
In court, after reading from the memo, Brennan asked Fitzpatrick whether he agreed with what was being suggested by headquarters.
“Well,” said Fitzpatrick, “again, that was one of the problems, the double bind. Here we are being instructed to deal with Connolly, where his source, Bulger, is a subject in the murder that we’re going to go talk to the informant agent about. It didn’t make much sense. And, quite frankly, we discussed that. We discussed that it was like leading the fox into the chicken coop.”
“Did you discuss that in Boston or did you discuss that in Washington?”
“Both.”
Fitzpatrick’s direct testimony lasted two hours. His time on the stand ended with the agent detailing how his attempts to close Bulger as an informant ended with his being forced to take a demotion and cut in pay and the loss of his pension. It was a sorry statement on the nature of institutional retribution and designed to elicit sympathy for a man who had gone against the grain and paid a heavy price. Fitzpatrick’s story was a cautionary tale, one that—the jury was encouraged to believe—made him worthy of respect, if not admiration. Then Brian Kelly stepped up to the podium.
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 ment
ion 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.”
Where the Bodies Were Buried Page 42
