Where the Bodies Were Buried

by T. J. English

  “I understand,” said Bulger.

  “And I understand, sir, if you disagree with it, okay?”

  “I do disagree. And that’s the way it is. And my thing is, as far as I’m concerned, I didn’t get a fair trial, and this is a sham, so do what youse want with me. That’s it. That’s my final word.”

  From somewhere in the spectators’ gallery, a voice rang out: “You’re a coward!” It was Patricia Donahue, widow of Michael Donahue, shouting from among the spectators.

  Announced the judge, “I need silence in the gallery.” She waited until the rumbling and rustling subsided.

  Turning back to the defendant, she noted, “Mr. Bulger, I understand your position, but my question to you was a simple one about whether you’ve decided not to testify in the case.”

  “That’s my answer,” snapped Whitey.

  “Okay, so you’ve decided not to testify in the case?”

  “Correct.”

  And that was it; Bulger sat down. The defense rested its case.

  OVER THE FOLLOWING news cycle, there was much verbal hyperventilation in both the local and national media. Whitey had spoken. It certainly wasn’t anything like the “full truth” or “stunning revelations” that his lawyers had suggested would be forthcoming, but he had slipped into the public record at least one lollapalooza by suggesting that his arrangement with Jerry O’Sullivan had something to do with protecting the prosecutor’s life.

  It was an explanation from out of the blue. Never in the long history of O’Sullivan’s career as a prosecutor had there been allegations on record of attempts on his life by the Mafia. It sounded like something out of a comic book version of organized crime, or a worldview informed by iconic fantasy depictions of crime like Dick Tracy, where good and bad is colored in black-and-white, or The Untouchables, a sophomoric depiction of the underworld that Bulger may have watched on TV in his youth. In reality, the Mob in the United States, especially the Mafia, rarely attempted to murder government officials. Such an act would bring about a reaction on the part of the criminal justice system that would make it impossible to conduct business.

  Even so, Bulger’s highly imaginative explanation might have been worthy of consideration were there any details to back it up, such as, Who set up his liaison with O’Sullivan? How many meetings were there? Where did they take place? And what, specifically, was promised? None of these details were provided by Bulger before or during the trial. All that was given was this glancing suggestion by Whitey that in exchange for protecting the prosecutor’s life, he had been given a blank check to commit crimes.

  What made Bulger’s fantasy all the more vexing was that it seemed designed to obscure a more realistic version of his deal with O’Sullivan.

  From prison in Florida, before the trial began, John Connolly had told me the story of Bulger and O’Sullivan meeting at a hotel room in Boston around Christmas of 1978. Connolly set up the meeting, at O’Sullivan’s request. Connolly was there. “Jerry and Whitey seemed to like each other,” Connolly had said. It was at this meeting that Bulger and O’Sullivan allegedly formed their pact. It was based on the concept that O’Sullivan would drop Bulger and his partner, Flemmi, from the massive race-fix indictment, and presumably, protect them from future prosecution, if Bulger and Flemmi delivered as informants in the feds’ ongoing dream of taking down the Mafia in Boston.

  This was a far more plausible scenario than the one Bulger floated during his brief statement in court. But Whitey could not admit to this scenario, because it would require his acknowledging that he had been an informant. Since he was not willing to admit that he had been a TE, it required that he come up with an explanation for his so-called immunity deal that was devoid of details or rational explanation.

  For anyone who had hoped the Bulger trial would serve as a final unmasking of the conspiracy that created Whitey Bulger, this was the final nail in the coffin. Apparently, the full truth would never be known—not only because the government wanted to keep it covered up, but because Whitey did not have the wherewithal to look himself in the mirror and admit what he had become.

  And so the trial shifted into its final stage; all that remained to be heard were the closing summations.

  For the prosecution, in particular, the closing statement was to be an effort of Herculean proportions. The team of Wyshak and Kelly had been gathering evidence and developing the case against Bulger for twenty years. It had been an unprecedented marshaling of forces. Even after Bulger went on the run back in 1995, they had continued developing their case. Patiently, they had accumulated evidence and witnesses and designed a strategy, as if they were architects laying the groundwork for an edifice that might not ever be built. Previous trials of John Connolly had been a prelude, significant projects, yes, but small and manageable compared to the Bulger trial, which had the potential of becoming a sprawling, three-ring circus.

  There had been other historic RICO cases against organized crime entities that included criminal acts from over a period of decades. But there were few that had begun with an indictment and then remained open for the next twenty years. While Whitey had been a fugitive, Wyshak and Kelly kept adding pieces to the puzzle. Jimmy Katz, Dickie O’Brien, Joe Tower, Billy Shea, and many other former criminals had cut deals with the government hoping and believing that Bulger would never turn up or be apprehended. Their appearances on the stand, along with the more significant testimony of Martorano, Morris, Weeks, and Flemmi, resulted in an unprecedented kaleidoscope of evidence against Bulger.

  In his summation Wyshak sought to lay it all out as if he were Ann Marie Mires, the forensic anthropologist, reconstructing a human body with bones, teeth, and other found objects. Standing at the podium, looking straight at the jury, the prosecutor spoke with a firm sense of purpose: “The evidence at this trial has convincingly proven that the defendant in this case, James Bulger, is one of the most vicious, violent, and calculating criminals ever to walk the streets of Boston. . . . [He] was the leader of a very wide-ranging, broad organization that was involved in many different types of crimes, from illegal gambling, loan-sharking, extortion, money laundering, narcotics distribution, to murders.”

  At its most grandiose, the trial had been a historical pageant. Wyshak wanted the jury to feel as though they were a part of something monumental. He referred the jury to the video monitors, which were positioned facing the jury and the spectators’ gallery, on which were displayed the leadership of the Winter Hill gang. This chart, complete with thumbnail photos of the various gang leaders, had been shown to the jury numerous times during the trial. Said Wyshak, “The men who led this group—Bulger, Flemmi, Martorano, Winter, McDonald, Sims—these men were the survivors of the gang war during the sixties. . . . You heard about how these neighborhood groups in Charlestown and Somerville and Roxbury and Dorchester were involved in this shooting war, where over sixty people died. The Mafia sort of sat on the sidelines taking potshots at both sides in the gang war, but these men were the victors, these men were the survivors. They were armed to the teeth. They were organized. They were feared. They acted like a paramilitary organization. You heard the evidence. When they engaged in criminal activity, they had this armory of weapons, they used stolen cars. Mr. Martorano described them as boilers. They had backup cars in order to crash into police vehicles that may come onto the scene. They communicated via walkie-talkies. They obtained intelligence from law enforcement. They hunted their targets.

  “These men didn’t hunt animals, ladies and gentlemen, they hunted people. That’s why they were so successful. These men were the scariest people walking the streets of Boston.”

  The prosecutor reminded the jury how all the mid- and street-level gangster witnesses in the trial made it clear that Whitey was the boss. Even though Bulger and Flemmi emerged as equal partners, in Southie there was never any question that Whitey was the man. He was the one who was rumored to have FBI agent Connolly in his pocket. He was the one who had a brother in the statehouse
.

  Said Wyshak, “William Bulger was one of the most powerful politicians in Massachusetts at the time. You heard the stories about the St. Patrick’s Day breakfast, how politicians stood in line outside waiting to get in, but John Connolly and a select group of FBI agents were brought to the back door and given a seat right up front.

  “That’s another reason why John Connolly aligned himself with James Bulger. Not only did it enhance his personal career, it cemented his relationship with William Bulger for his dream job as police commissioner of the city of Boston.”

  The subject of Connolly was a touchy one for Wyshak. Certainly, the prosecution had no hesitation in linking Connolly to Bulger’s organization and making it appear as if “Zip” was the mastermind behind the corruption of the Boston FBI. Wyshak shrewdly acknowledged, “The defense probably did a better job of [exposing the corruption] than the government did.” The Boston FBI, admitted Wyshak, was “a mess.” But then the prosecutor executed a ninety-degree pivot to deflect attention from the U.S. Justice Department, which had consistently rewarded Connolly and his partner, Morris, with commendations and financial incentives, and the U.S. attorney’s office, which built prominent criminal cases against the Mafia in partnership with Morris and Connolly’s C-3 Unit.

  As Wyshak put forth an argument designed to exonerate the upper reaches of institutional authority, his voice turned shrill. He used one of his favorite phrases, “make no mistake about it,” and used sweeping phrases such as “every piece of evidence that’s before you at this trial.” Generations of corruption in the criminal justice system in New England were narrowed down by Wyshak to one element: a “failure of management” on the part of the Boston FBI office. Not surprisingly, the prosecutor attempted to put the blame on Robert Fitzpatrick.

  Wyshak called Fitzpatrick “the poster boy for what was wrong with the Boston FBI at the time,” even going so far as to imply that Fitzpatrick was personally responsible for the deaths of Debbie Davis, Roger Wheeler, John Callahan, Brian Halloran, Michael Donahue, John McIntyre, and Bucky Barrett, all of whom were killed while he was ASAC of the Boston office. This expression of moral outrage on the part of the prosecution was not only unusual, it was singular. Wyshak’s condemnation of Fitzpatrick did not extend to any of the other ASACs, SACs, special agents, or Strike Force prosecutors who were on duty during the Bulger era.

  The prosecution had been allotted three hours for their summation. Wyshak exceeded that amount of time. A significant portion of his argument was spent defending his brand. The U.S. government, in the form of the Department of Justice, had taken a beating during the trial, and the prosecution, along with convicting Bulger, was entrusted with the duty of cleaning up after the elephants at the parade.

  Said Wyshak, “The defense would have you think that the entire Department of Justice, the U.S. attorney’s office, the Strike Force, is corrupt. Not so, ladies and gentlemen. Use your common sense. You know, there’s an old saying: a few bad apples spoil the barrel.”

  Finally, Wyshak did something he had not done during the entire trial: he resorted to invective. In response to an implication put forth by the defense counsel that prosecutors secured cooperative testimony from criminals through financial inducements, the lead prosecutor snapped, “The concept that the government buys testimony, well, that’s just a slanderous and lowlife remark from Mr. Carney. It’s not how the system works.”

  A lowlife remark?

  John Martorano was paid twenty thousand dollars on release from prison. Many of the criminal witnesses who testified acknowledged receiving payments from the government. Whether or not this constituted “buying testimony” or was simply a case of the government offering financial aid to people who had already agreed to cooperate was an argument that had been going back and forth for decades in courtrooms all across America. Criminals are persuaded to testify through all kinds of inducements—from reduced sentences to improved incarceration conditions and financial remuneration. Assistant U.S. Attorney Wyshak’s shot at Jay Carney for making what was arguably a legitimate observation was—uncharacteristically—a punch below the belt and after the bell.

  IN MARSHALING TOGETHER the evidence and intellectual wherewithal to formulate a cohesive closing summation, the defense team of Carney and Brennan were caught in a conundrum. They could spend the better part of their three-hour time allotment making the case that Bulger had never been an informant, which, no doubt, would have been to the liking of their client. But as longtime members of the Boston bar, first as prosecutors and now as defense attorneys, they knew that as they addressed the long-gestating case against Whitey Bulger the eyes and ears of an entire city and part of the nation would be fixed on their closing statement. It might have been an overstatement to say that their entire careers depended on it, but it was not far-fetched to surmise that for the remainder of their years on the bar they would never again have such a high-profile case.

  In their opening statement they had suggested that their defense of Bulger would be historic and monumental. Much of this hyperbole was predicated on the possibility that Whitey himself would take the stand. With that fantasy finally having been disposed of, the lawyers were faced with a challenge: deliver a closing statement that was worthy of their case.

  They had decided to divide their presentation into two parts, with Brennan delivering a ninety-minute summation and Carney following with a statement of equal length.

  “About an hour ago,” said Brennan, standing at the lectern addressing the jury, “Mr. Wyshak was telling you about the fact that some of the most dangerous murderers in the history of Boston were walking the streets.” Brennan identified Martorano, Weeks, and Pat Nee as among the men Wyshak had been referring to, saying to the jury, “You have to sit there and ask yourself: if they’re so vicious and violent and our government knows about it, why are they out there right now?”

  From the start, Brennan sought to plant the seed: “There’s got to be more to the story. . . . To understand what the government’s motives are, we have to go back to the 1960s. . . . And after we talk a little bit about the history, we’re going to talk about today, what the government has done to cover up their liability and their responsibility for what they have done.”

  It was a promising opening salvo, and for a good thirty minutes Brennan laid it all out. He started with Steve Flemmi and constructed a narrative that, in all the journalism and books on the Bulger era, had been insufficiently explored. It was Flemmi who, during the city’s gang wars, while Bulger was away in prison, first became a Top Echelon Informant. Flemmi entered into a partnership with Special Agents Rico and Condon.

  Noted Brennan: “[Flemmi] was at war with other criminals. He was at war with other gangsters, and when he needed help, all he needed to do was draw on his friends, the federal government. Condon and Rico, they’d tell him where Punchy McLaughlin was, where Wimpy Bennett was. ‘You want to murder him? I’ll give you the bus stop he’s going to be at.’ They’re in partnership with him. And when they needed his help, they needed some information, they needed a gun, they needed a car fixed, they’d call on their friend. This is the type of relationship that they had, and they accepted it.”

  It was a cogent point: Brennan was suggesting that the seed that had been planted that gave flower to the ugliness, corruption, and murder that were to follow for the next thirty years had been planted not by Bulger, Connolly, and Morris, but by Flemmi, Rico, and Condon.

  To illustrate his point, Brennan reminded the jury how, after Flemmi and his partner Salemme blew up the car of Joe Barboza’s lawyer, blowing off his leg, they were told to get out of town by Special Agent Rico. During his time on the lam, Flemmi remained in touch with Rico. At the same time, he murdered a criminal partner in the Nevada desert. There was a warrant out for his arrest. But Flemmi kept moving. He wound up in Montreal, where he hid out until receiving a call from Rico telling him it was safe to return to Boston. Brennan reminded the jury, “[Flemmi] didn’t even want to come ho
me. He said that. He felt like it was a threat.” But Rico insisted. Flemmi’s services were needed back in Boston.

  “Then we have the transition,” said Brennan. “As agents get older and Mr. Rico and Mr. Condon start to move on, who comes in to take their place? Special Agent Connolly and Special Agent Morris. They hand off the baton, and it’s business as usual. It’s not a rogue agent. It’s systemic. It’s what they do.”

  So far, so good: Brennan was spinning a tale that implied that the purveyors of the system, the FBI field agents and their supervisors, were manipulating the gangsters like pieces on a chessboard. Brennan even took the argument a step further, explaining how the efforts of the FBI became the foundation for the federal Strike Force and the U.S. attorney’s office.

  “When we near the late 1970s, we know the temperament of the Department of Justice. We know the Strike Force, headed by Jeremiah O’Sullivan, wants the national attention. They want everybody to look at Boston and say, ‘This is the prototype. These guys are the best at what they do.’ They want the accolades, they want the glory, and they’re willing to make deals. They’re willing to protect criminals, murderers, because of pride. Because when law enforcement puts pride and self-importance in the equation, something about it gets distorted, something gets perverted, and something gets corrupted.”

  And this is where Brennan’s presentation became derailed. After constructing a compelling narrative, Brennan found himself at a dead-end street with nothing visible except for the disembodied visage of Whitey, hovering in the darkness, like the face of Obi-Wan Kenobi. It was logical to surmise—and there was plenty of evidence to back it up—that Flemmi was called back to Boston, in part, to help recruit Bulger as a Top Echelon Informant. But Brennan could not make that argument because his client was not willing to admit that he ever was an informant. And so Brennan was left with a less than startling conclusion to his story. He ended by suggesting that Flemmi’s historical relationship with the government was the reason that Bulger’s partner was now a witness telling lies about his client. This may have been true, but it was a far less epic explanation for Flemmi’s motivation than the likelihood that he was an essential facilitator of Whitey’s relationship with the feds, thus ushering in the Age of Bulger and all the bloodshed that followed