TTTT

Trekking Toward The Truth – A Journey With Others Over The Road Less Traveled

Originally dedicated to the vagaries of matters involving Whitey Bulger and the FBI but now expanded into more general topics.

TTTT - Trekking Toward The Truth – A Journey With Others Over The Road Less Traveled

The Guesswork Involved In Deciding On The Truth – I

Sometimes Some Come In With An Advantage

One thing we know about our system of justice is that wrong decisions are made every day. This is because it is a human system which does not provide for certitude. We have people who don’t really know other people making judgments about them based on a minimal encounter. Even though my career was as a trial lawyer, I’ve always believed it quite unnerving to be brought before twelve people and a judge, or a judge alone, to whom you are a complete stranger and have them make a decision about you.  Even more so if it involves your freedom.

We have no system other than using other people to tell when a person lies or is telling the truth. Our system does not prevent a known liar from coming in and testifying. A person like Sally Slander may say a certain thing ten times and then can come back and testify to the opposite the next time. Someone like corrupt retired FBI Agent John Morris who testified as I’ve shown in my book Don’t Embarrass The Family that he lied over and over again, sometimes under oath, is allowed to testify in the same manner as someone who has never lied before.

Our system favors the glib over the taciturn. The former are used to talking  and can carry it off quite well in front of strangers. Herman Melville wrote about this in his novella Billy Budd.  Billy’s on a British ship-of-war and an officer, John Claggart takes a disliking to him. He accuses Billy of mutiny. When Billy is brought before the ship’s captain because of a speech impediment he can’t verbally defend himself so he’s doomed to walk the plank.

We favor the bold over the meek. Mafia enforcer Larry Baione could pass a lie detector test denying he committed certain crimes when the evidence was overwhelming that he did them. You’d much rather have a person who was a well dressed salesman as a witness than someone who shows up in working clothes coming from his construction job. Or as a prosecutor a defendant who shows up dressed like a gangster than one in a nice business suit.

Suppose you are driving home at night and go through an intersection on a green light and a person coming from your right runs the red light. You collide. She accuses you of running the light. There is no other evidence to show how the accident happened. She’s a very attractive woman in her late twenties; you’re a beat-up guy with a pot belly in his mid-fifties. It’ll be your word against hers. What are the odds the fact finder will make the right decision?

To somewhat remedy this, we have created steps in the amount of proof necessary for a person to arrive at a conclusion about whether something happened or not. You’ve heard the familiar refrain that something must be believed “beyond a reasonable doubt.” Some explain it by saying it means “to a moral certainty.” Both are difficult concepts to understand and each person has a different idea about it. It basically boils down to “you really, really have to believe it happened.”

Even within a criminal trial there are other standard that apply beyond reasonable doubt. When it comes to determining if a confession is voluntary, the US Supreme Court noted in the case of Lego v. Twomey that, “State courts . . .   have . . .  adopted a variety of standards, most of them founded upon state law. Many have sanctioned a standard of proof less strict than beyond a reasonable doubt, including proof of voluntariness by a preponderance of the evidence or to the satisfaction of the court or proof of voluntariness in fact.”

I’ll go on with this tomorrow but I’m asking you to keep in mind that when a fact finder like a judge decides what she believes, it may not necessarily be so. Unfortunately, even when it is false it becomes the truth. It then gains an unwarranted currency that can warp everything that follows.

 

 

Having The Judges Do Their Jobs

“Bring in the guilty lad. I’ll give him a fair trial.”

I mentioned how David Boeri and David Frank’s article Ortiz Under Fire got me thinking about other happenings in the justice system. I’ve told how I believe the cops are running the show in the Boston U.S. Attorney’s office. But there is another aspect to that story I’d like to speak about.

I’ve pointed out in my book Don’t Embarrass The Family how the evidence in the case against retired FBI agent John Connolly consisted in the main in two parts: a corrupt FBI agent John Morris who was Connolly’s supervisor testifying against him so he could save his pension and avoid prison; and three gangsters who made fine deals for themselves with the prosecutors to avoid spending the rest of their lives in prison or on death row.

The outcome of the Connolly trial which few seem to know is that the jury disbelieved all of the gangster testimony about John Connolly’s actions as an FBI agent. Martorano testified his gang gave Connolly a $5000 ring, he was found not guilty; Martorano testified he killed Richard Castucci because Connolly had outed him as an informant; Connolly was found not guilty. Connolly was accused of leaking information that Halloran was an informant, that Callahan would be pressured by the FBI, and that Baharian would be wiretapped. He was found not guilty of all. The charge against him of extortion of a liquor store also resulted in a not guilty.

The jury disbelieved all of corrupt FBI Agent Morris’s testimony about Connolly leaking the identity of Halloran or of the wiretap of Baharian. The only crime the jury believed that Connolly committed while an FBI agent was that he gave Morris a case of wine with $1000 in it . As some commentators point out, led by William, after the federal government did a thorough investigation of retired Agent John Connolly’s actions while he was an FBI agent, it was only able to convince a Boston jury of that. The government has never proven to a jury Connolly took a dollar yet I’d venture to guess everyone believes it proved he pocketed hundreds of thousands of dollars.

All the other acts that Connolly was convicted of related to actions he performed four to eight years after he left the FBI. Those related to his involvement in the flight of Whitey and Salemme and his attempts to help Flemmi avoid prosecution. There was independent evidence from non-criminals about these.

I’ve pointed out throughout this blog that the gangster witnesses are allowed to testify against Connolly but are not required to tell the whole truth. The prosecutors made deals with each that they only had to tell some things and not others. For instance Frankie Salemme was allowed to testify against “cops and rats” but not against the Mafia murderers; Kevin Weeks was allowed to hide the identity of his friends who killed Halloran and Donohue and McIntyre; Martorano could hide the  evidence against his brother or Howie Winter and could pretend he agreed to give evidence against people he did not know.

The Boeri and Frank article showed in two of three cases they wrote about the judges played an active role beyond listening to the evidence and handing the cases over to the jury. They judged the credibility of the evidence and the witnesses.

One of the two cases involved Attorney Tracy Miner who was in front of Judge Joseph Tauro. The great irony is she also tried the John Connolly case in front of him.

As best I can tell Judge Joseph Tauro listened to the prosecutor’s main witness, found that he was incapable of being believed because he would not identify his associates, so he threw out the case. Judge Tauro didn’t say to himself, “I’ll let the jury figure out if this liar is worthy of belief.” He did what he should have done. He prevented a fraud upon the justice system. That is part of his job. He didn’t pass the buck to the jury.

Yet in the Connolly case given a similar situation he asked the jury to make the decision about the credibility of the same type witnesses. The jury did his work for him and found them incredible. I understand that in a high publicity case like that of FBI Agent John Connolly or Whitey Bulger a judge is reluctant to interfere with a witness. But isn’t that part and parcel of the job just like the US Attorney has to interfere with aggressive cops and suffer the blow back.

Perhaps the judges also have to step up their game. They should be more active in protecting the jury from guessing. There should be a standard, or a red line established, where some people are ruled incapable of being believed without substantial corroborative evidence.

The Connolly jury knew Martorano had murdered 20 people but agreed to testify because he received only 6 months for each murder was not telling the truth. It refused to believe him. What should follow from that? Should Martorano be allowed to try again in front of another jury? That’s what happened in Florida. That’s what will happen in Whitey’s case.

The prosecutors have no problem having him do this. What about the judges? Do they have an obligation to deem him incapable of belief if one jury has already disbelieved him. At a minimum shouldn’t the next jury be told he has already been disbelieved by a prior jury?

Also with corrupt Agent John Morris, should a jury have to guess about the testimony of an FBI agent who admits he lied under oath on several prior occasions? If I prepared an affidavit for a warrant and said my informant has lied on many previous occasions and is now telling the truth any judge I ever dealt with would have laughed me out of the lobby.

What about Morris’s lie in front of the jury? He testified he lied multiple times in the past but now he has to tell the truth to it because if he doesn’t he’ll be charged with perjury. Everyone knows, except perhaps the jurors, that will never happen. It it would destroy the government’s case.

I’d suggest the judges prevent an admitted liar or benefited gangster from testifying without independent corroboration especially after much of their testimony has been previously disbelieve. No judge would issue a warrant based on an affidavit of persons who have been known to have previously lied or been found not credible. Why then in a much more serious matter where a person’s liberty is a risk isn’t the same standard applied?.

Wonderings About This And That: The Judiciary

The Judiciary:

The argument before the First Circuit Court of Appeals on whether Judge Richard Stearns should step down from handling the Whitey Bulger case happened on January 8 of this year. The issue seemed quite simple and clear-cut. It called for a yes or no answer. The judges on the panel were the most prominent that could be assembled in this area including a former Supreme Court justice and the chief justice of that court. I’m surprised that they didn’t agree within minutes of leaving the bench, give the answer, and offer a simple explanation for their decision.

It has now been a half a hundred days for the court to decide this. If you ever pause to wonder why it takes so long for anything to be done in the federal judicial system just remember this and you’ll have your answer. If you’re ever told, “why make a federal case out of it?”— you’ll understand better the expression.

I’ve had this feeling the federal system has been off kilter and walking to its own strange tune recently. Probably since the time of the Patriot Act. Watching developments since then I’ve had a weirdly un-American feeling that if a person is wrongfully scooped up by some federal agency she could end up being held for years or possibly forever before she could gain relief. The judiciary has become so deferential that all the executive has to do is shout that she is some sort of threat to the homeland and she won’t even get a hearing.

It appears that the powers of the executive utilized through the various police agencies like Homeland Security (why does that term sound so like 1930s Germany) have significantly increased while the judiciary has taken a laissez-faire attitude — “give us our paycheck and perks and leave us alone.” Combine that with its snail-like approach to handling matters leaves me feeling the judiciary has become less and less the preserver of our rights and liberties.

Pretty soon those nice inscriptions setting out the sayings of prominent Americans on the front of the federal courthouse on the harbor will have to come down. They will be replaced by the words Dickens suggested be placed above the door of the Court of Chancery in England: “Suffer any wrong that can be done you rather than come here!”

The Perfect Storm In Ortiz’s Office

Giving Orders To The Prosecutor

Over the last two days I’ve written about David Boeri and David Frank’s article Ortiz Under Fire. Boeri has been one of the best writers in the matters surrounding Whitey Bulger. He has approached the matter from what I’d call “an investigative reporter” point of view. He considers all sides and puts his long experience to use in arriving at his conclusions. Most other writers seem to line up on the side of the prosecutors and act as cheer leaders for them. I’ve disagreed with some of Boeri’s conclusions but appreciate his insights and ability to see the case through a different lens based on his skill as a reporter.

I know less of David Frank. He seems to be a gadabout going from one high publicity case to another and opining on them. I have no idea what his background is as a litigator or even if he’s ever been in the pit. Perhaps he’s seen enough by now to be able to separate the chaff from the wheat. Together Boeri and Frank produced a fine article well worth being read by every person especially those in the litigation business.

The reason I bring up their article again is that there is much more in it than meets the eye. It does what good articles should do and that is to make one reflect on it for what it says and what it doesn’t say. The gist of it to me is that the US Attorney is failing in her responsibility to insure that no person is prosecuted unless there is close to a certainty the person committed each crime that will be charged. The article doesn’t tell us why this is happening.

Months ago I talked about the qualities needed to be a good prosecutor and one is not to be run around by the cops. The jobs are different. The cops are supposed to be like pit bulls charging around biting at people, the prosecutor is supposed to insure they only bite the people who deserve to be bitten” The cop has the hard job of pounding the bricks ferreting out the evidence; the prosecutor has an easy office job of reviewing what the cop digs ups and being absolutely convinced that it establishes the person committed the crime.

When the cop has spent time and energy putting together her case it becomes something she wants to bring to a successful end which means she wants a prosecution. She can’t do this on her own because our system interjects a person between the cop and the suspect. It is the prosecutor. She has to convince the prosecutor to go forward with the case, or, better put, the prosecutor has to tell her she doesn’t have a case. In some cases taking a bone away from a hungry bulldog is easier than telling a hard-working cop that her evidence doesn’t support her conclusions. Cops don’t like to hear no.

This is the first blip in the road for the good prosecutor. There is no easy way to tell a cop the evidence just isn’t there. It’s easier for the prosecutor to go along with the cop who is sitting across the table from her insisting she is right than to tell her otherwise..

I think of Jeremiah O’Sullivan when I say that. He was a top-notch prosecutor who had no trouble taking a case to trial against the most formidable of criminal defense lawyers in the highest profile cases like Mafia prosecutions. But when it came to the cops he ran scared. In answer to a question by Congressman Meehan about the FBI culture, O’Sullivan said: “[T]he FBI if you go against them, they will try to get you. They will wage war on you. They will cause major administrative problems for me as a s prosecutor.” 

O’Sullivan was a federal prosecutor for 20 years. He was head of the Organized Crime Strike Force. He was interim US Attorney for Boston at the close of his career. If that expresses a common attitude about the cops you see how a federal prosecutor could believe his job is at risk in going against the cops. Even before he sits down his hand is already weakened by this wrongful shift in the balance of power. But it’s worse.

Boeri and Frank’s article suggests to me a perfect storm is happening in Carmen Ortiz’s office. Even if a federal prosecutor had the back bone to stand up to the cops it would do no good. Ortiz has, as I showed yesterday, the attitude “let’s go with it and see what a jury decides.” How can a prosecutor turn down a cop’s request to charge in that type of environment? Can’t you hear the cop saying, “You might not think I have enough but that’s not your decision. I want a jury to decide.”

The fearful prosecutors have become rubber stamps. They are afraid of saying no. If they do, they are not being given the backing they need. That is the only explanation for the situations as shown in “Ortiz Under Fire” and in the Caswell Motel case. Carmen should take Nancy’s advise and “just say no” to the cops and accept Justice Jackson’s suggestion she have “humility” in her dealings.

She can still turn things around if she realizes her power should be wielded with wisdom. Her boss Eric Holder has pointed the way. He said: “Your job . . . is not to convict people. Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision that you make, to do the right thing.

Here’s hoping the storm starts to abate.

Identifying The Scent

Justice Robert Jackson At the Nuremberg Trials

David Boeri and David Frank’s article Ortiz Under Fire was about three cases where the defense lawyers who won them suggested that had they been properly vetted the charges never would have been brought. To me, that’s a devastating charge. The consequences of being charged with a crime: destruction of reputation, depletion of assets to defend oneself, devastation of health, and direness of prison demands that no person should ever be charged with a crime at either the state or federal level unless the prosecutor is as close to certain as one can be that the person committed the crime. That is at the core of the being a good prosecutor.

For lawyers to suggest their clients should not have been charged and they prove it by having judges decide the evidence is so bad no reasonable jury could convict on it, is a serious condemnation of a prosecutor’s office.

Having strong evidence of a crime is but a first step. Other decisions are then required. First not all crimes should be charged. Next, the charges should reflect the crime and the person. It serves little purpose as we saw in the Aaron Swartz case where an otherwise law-abiding citizen known for his brilliance committed something amounting to little more than a prank ended up facing 35 years in prison and when he didn’t fold the charges were upped to fifty years.

I again refer to what Justice Robert Jackson told the US prosecutors. He said that a “citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”  He introduced that statement by saying, “The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway.” 

It seems to me that Carmen Ortiz fits into that class of people who just can’t understand what it takes to be a good prosecutor. I say this not from the results of her cases. I am judging her ability from her own statements. She really doesn’t get it.

In the Catherine Greig case she justified recommending ten years in prison for this woman with no criminal record because she went off and lived with Whitey who Ortiz said was accused of 19 murders. When Greig fled with Whitey no one had publicly accused him of murder. It was years after she left that accusation first came up. There has been no evidence ever shown that she ever knew Whitey was accused of  murderer or believed the accusations even if she knew.

In the Aaron Swartz case she justified the harsh charges against him on the basis that“Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”  Even a child knows stealing is not stealing and the degrees vary immensely as do the motives.

In Caswell Motel case she said the Town of Tewksbury had been “plagued for decades by the criminal activity at Motel Caswell,” and added that the “ongoing criminal activity at Motel Caswell that spanned nearly 30 years without any effort by the owner to be addressed.’’  The judge hearing the case found there were 15 incidents of drug related activities in 14 years of which 8 would not support a forfeiture and concluded that Ortiz’s actions in bringing the case were all but preposterous. 

Boeri and Frank write about a case her office brought against a lawyer for a biotech company. the judge ruled there was no credible evidence the lawyer was guilty saying he had never ruled like that before as a judge. Ortiz responded, “I think that case should have gone to the jury, and then we would have had a better understanding as to what would’ve happened in that proceeding.” How could Ortiz possibly think a jury could find the person committed the crime  beyond a reasonable doubt when a judge cannot find any “credible evidence” the person did it.?

In a similar case mentioned in the Boeri and Frank article she pats herself on the back for dismissing a case where the defendant was being accused of defrauding seven doctors and the doctors had never been interviewed by her prosecutors. She says “I made . . . a fair and right decision.” But she goes on, “I think others in my seat would not have been wrong to say, “Let the jury decide.”

Imagine that! The right decision according to her is to dismiss the case but someone deciding otherwise would not be wrong. How does that make sense? How can it be right to stop the wrongful prosecution of a person yet also be right to  continue the wrongful prosecution of that person? How does her idea that passing the buck to the jury make sense?

She wants juries to decide weak cases. How can a jury find beyond a reasonable doubt in these type cases? They can’t and that’s not a jury’s function. It is her function to bring solid cases not only against professional people but everybody.

This isn’t a game. Lives can be ruined by such a cavalier attitude. She has to be convinced beyond a reasonable doubt in the calm of her office that a crime has been committed. If she isn’t the case is over. She can’t pass the buck to a jury hoping it will figure out what she can’t. Why does she think she is in that office?

In my book Don’t Embarrass The Family I write about the trial of retired FBI Agent John Connolly and how the witnesses, especially retired FBI Agent John Morris, would say they lied in the past but are now telling the truth. I’ve wondered how the prosecutors thought a jury could determine that this time the liars weren’t lying.

Looking at the thinking of Ortiz I figured out the answer. The prosecutors don’t care. They are taking the evidence the cops give them and because as Judge Jackson suggests they are incapable of understanding what are “[t]he qualities of a good prosecutor” they pass the cases over to the jury to make a decision. They apparently have no idea that a prosecutor has a role in trying to seek the truth. Good prosecutors do not rely upon a jury to tell them whether they are right or wrong as Carmen Ortiz seems to think. They know it in their bones.

The Scent Of A Problem

Where One Can Get Away From It All

How the mighty have fallen. Carmen Ortiz who enjoyed a Hollywood-like existence as the US attorney in Boston has tripped up and the gang is piling-up on her. Margery Eagan took a shot at her and now I see Dave Boeri and Dave Frank have followed up. I’m tempted to say welcome to the club.

I have criticized Carmen Ortiz based on several things she has done. I thought she was brutal in her recommendation of a sentence for Catherine Greig; was heartless in trying to steal the motel from Russ Caswell; and lacked discretion in bringing RICO charges against the probation officers who were merely doing the bidding of judges and legislators. I suggested her actions in the handling of the Aaron Swartz case a continuation of her lack of judgment.

Yesterday I wrote about what I thought was a solid performance by some of the assistants in her office. It so happened I did this in response to Eagan’s criticism of her. I tend not to like pile-ons. So seeing the new article by Boeri and Frank Ortiz Under Fire.”   I tended to be skeptical, especially since they were quoting some criminal defense lawyers, and my instincts were to defend Ortiz.

One thing that I have learned is that if defense lawyers are happy with the prosecutors then the prosecutors are probably not doing their jobs. Whenever a defense lawyer would tell me about what a great kid one of our young assistant’s was I always figured the lawyer had just taken the kid for a bath. That happened on occasion since the younger ADAs never had the experience of the criminal defense lawyers and were often bamboozled by them. It didn’t really matter that much because they weren’t handling the serious cases so society did not suffer by them having had their pockets picked.

When the criminal defense lawyers called me to complain about an assistant I usually knew that assistant was doing a good job. You have to understand the mind of a criminal defense lawyer, for the most part everyone is guilty except his or her client and they will always offer up other people, often the victim, the prosecutor should have charged.

So I expected to come away thinking more favorably about Ortiz. That was not to be the case.

One lawyer mentioned was Tracy Miner, who defended FBI Agent John Connolly. I know Tracy. She’s an excellent lawyer and not a bomb thrower. She never complained about anything in the Connolly case so for her to express dissatisfaction caught my attention. The other lawyer quoted is Brien O’Connor. He also seems quite competent considering his clients but I do not personally know him. They talked about dealing with  Ortiz’s office in three cases: two involved lawyers and one a pharmaceutical company. What is unusual is that these were cases where their clients got acquitted so that piqued my interest.

A common theme running through their complaints against Ortiz was that she never should have indicted their clients, her staff seems to run her, the staff is stone deaf to any attempts to resolve the cases, and at the time of trial her prosecutors were poorly prepared.

Boeri and Frank do an excellent job setting out these assertions, backing them up and overcoming my skepticism that they were involved in a gang-up or were processing the usual defense lawyer complaints.

I came away from reading their article more convinced than ever that Ortiz is running a bad office just after having given her some praise. In Miner’s case, Miner asked the main witness against her client to identify the other participants in the alleged scheme. He responded something to the effect, “I’m not going to rat on my friends, honey.” This has shades of the case against Whitey where Weeks is telling half-truths and Martorano is hiding the identity of other criminals. A former AUSA John Pucci said of this: “If the witness in prep won’t answer the questions, you’ve got a significant problem on your hands, and you got to solve it. But the solution isn’t to go to trial and let him get on the stand and refuse to testify. That’s not justice, and that’s not the answer to that problem.”

We see the prosecutors of Whitey have the same problem. They are going to trial with witnesses who are lying and refusing to identify other participants in their crimes. The Weeks matter is obvious. He says he went to murder Halloran and Donohue with Whitey and a person he didn’t know (how many people do you know go off to murder people with strangers?) because he wore a ski mask and he never asked who it was or heard who it was in any conversation with Whitey thereafter. That is aside from there being at least one civilian witness who said the person did not wear a ski mask. Add to that Weeks has himself driving two different cars to the murder.

Whitey may be a bad guy but it doesn’t justify using people you know are lying or hiding things to convict him.

But that’s not my real problem with Ortiz. Nor is it that it seems the cops are running her office. Tomorrow I’ll tell you what reading the article by Dave Boeri and Dave Frank made me realize about her.

Carmen Ortiz Gets One Right

The Lights Of The Federal Prosecutors Office Burn Bright Into The Night

Margery Eagan in the Boston Herald stepped forward to criticize what is happening in the US Attorney’s office in Boston. I was surprised at this because the two major Boston papers have been walking in lockstep over the years in protecting and praising that office despite what seemed to me to be in some instances an obvious horrible lack of judgment.

Ms Eagan deserves praise for her courage. She talks about the deal just given to ex-Chelsea Housing Director Michael McLaughlin who was earning hundreds of thousands of public money but was caught red-handed filing false reports about how much money he was being paid. The federal prosecutors have made a deal with this man who was putting in his pocket tons of money that could have been used to better the condition of the poor folk living in government housing. McLaughlin is hoping he can avoid prison where he belongs.  He’ll get a “stay out of jail” pass if he becomes a cooperating witness for the government and gives it some juicy tidbits on which to chew..

It seems pretty bad to hear the prosecutors making a deal with this man. But a closer look at what the prosecutors brought about shows that it was a smart move. I’d suggest that rather than criticizing Ortiz’s office for that case, it deserves a little bit of commendation. It made a silk purse out of the sow’s ear.  I say this because it seems to me the prosecutors had very little to work with but some had the imagination to turn McLaughlin’s actions into a crime.

The Globe reported“On Tuesday, McLaughlin admitted that for at least four years he intentionally understated his actual salary by about $140,000 annually out of fear that disclosure would trigger a federal investigation into his activities.”  As best I understand the case, McLaughlin was grossly overpaid. In FY 2011 he took home about $360,000 a year, twice if not three times the governor’s take home pay.  This absurd salary happened because the people who were suppose to monitor his payments didn’t do their jobs. He took advantage of that group of sad sacks and jammed his pockets full of money. However, it was all on the up-and-up. No crime was involved in overpaying this greedy man.

In November 2011 a brazen McLaughlin boasted about his salary to the Globe saying he was a super star. He deserved every penny he made. Yet in truth, as the old Ukrainian saying would have it, “a thief feels his hat is on fire.” McLaughlin felt he did not deserve what he was putting in his wallet and tried to hide it. He felt that reporting his true salary would be like a red flag so he under reported his income to the US Department of Housing and Urban Development (HUD) which provided the bulk of his agency’s funding. 

According to the prosecutors in FY 2008 McLaughlin under reported his income by about $91,000 ($242,908 vs $151,945 reported); in FY 2009 by about $108,000 ($267,199 vs $156,503); in FY 2010 by about $115,000 ($275,215 vs $160,415); and in FY 2011 about $123,000 ($283,471 vs $160,415).

The HUD officials in FY 2008 had no problem with the reported $151,945 so who can say they’d object to $242,908. If he reported his actual income and someone objected the worst that would have happened is HUD may have told him he was a little overpaid and to cut it back a bit. Who even knows if anyone read the report he was filing. Without knowing it for sure I’d suggest McLaughlin’s pay was a small percentage of the overall budget. On one hand you can think “what’s the big deal – he didn’t steal anything – he underreported his authorized income – it really didn’t affect anything – it’s not a crime in America to be greedy.”

An alert prosecutors thought otherwise. Using 18 USC sec.1519 that makes it a crime punishable by 20 years for making a false entry in a document with intent to “impede, obstruct or influence the proper administration of that matter” a prosecutor charged McLaughlin with violating that statute asserting by understating his income McLaughlin was impeding, or obstructing, or influencing the proper administration of HUD’s oversight of the Chelsea Housing Authority’s budget.

I’d figure that was going to be a tough sell to a jury. Despite this they had the guts to go with it. Kudos to them because the charge would only put McLaughlin in jail for around a year. That’s hardly a hammer with which to hit someone. Facing such short time they had to believe this would be a trial which they could very well lose. I had to think the last thing they figured was that McLaughlin’s bravado would flee faster than a nice day in the New England winter. He folded his hand, surrendered unnecessarily, and gave the prosecutors a brilliant victory.

He’s now available to the Massachusetts Attorney General and the federal prosecutors to provide an inside view of what’s going on inside the political world that allowed a stiff like him to have a salary that ballooned so far out of proportion. There’s also 7 million dollars of money that went to the Chelsea Housing Authority that apparently can’t be accounted for.

He can tell them where it went. McLaughlin’s running scared, is incapable of doing a year in jail, so he should be a font of information. He is the type of guy you want to work with. He’s at the bottom of the pyramid. He has no criminal record and he can’t do time. He may have  evidence against people above him or may not.

The prosecutors know they need more than this man’s word since he’ll say anything to stay on the street. They need to have substantial corroboration if they plan to move against people in higher positions or whose reputation will be damaged merely by being charged. Enough of the overcharging and throwing RICO charges at people without criminal records. Do what you did in this case, charge for the crime committed.

Marjorie Eagan ended her column by saying with respect to Ortiz’s office, “I can’t see the justice in it anymore.” I say that Margery is barking up the wrong tree in this case. This is an example of how the prosecutors should act. What’s particularly brilliant about the deal is that no matter how hard McLaughlin labors, the punishment is left open to the judge who can still hit McLaughlin with prison.

It’s a case worth watching. Let’s see if the prosecutors follow through as they should.

 

Billy Bulger III

The Sun Sets On Whitey’s Career

 What bothers me about the situation Billy finds himself in are the loose and disingenuous suggestions by newspaper people, and others who have formed an abhorrence of Billy with access to the media, that because of Billy’s high position in the Senate no one investigated Whitey.

No one asks these people, “What do you know of those investigations that were being conducted?” Or, more basically, “How many criminal investigations have you been involved in?” It’s the audacity of these people to aver to something of which they have no knowledge that smarts me.

That is so because I was in the DAs office and worked for years investigating organized crime. I knew what was going on. I did more wiretaps than all the other prosecutors in the state including the federal prosecutors combined for several years in a row. I know this because we were required to file with the federal government reports of these activities.

But if you don’t accept my word, accept that of Whitey. There are numerous reports on file by Agent Connolly where Whitey complains about only one district attorney’s office he said was harassing him. That was the Norfolk District’s Attorney’s office where I worked. He continually asserted we had a launched a vendetta against him. The animosity toward us was because of the electronic surveillance we had done and were doing against his operations. When Detective Dick Bergeron went to retrieve an electronic bug Whitey had found in his car Whitey lashed out at the Norfolk  DAs office. If any entity in Massachusetts could ill afford to displease the Senate president who had control over its budget it was a district attorney’s office.

I was on the inside. I investigated Whitey without giving a moment’s thought to Billy. I obviously knew Billy and Whitey were brothers but I never associated them with each other as I did my duties as a prosecutor. Maybe it was because I grew up in a neighborhood where in one family one brother was in prison and the others were a cop, a doctor or a priest. It wasn’t unusual to have families with criminals and law-abiding siblings. No one attributed the acts of the criminal to the other brothers, each was considered as an individual.

I worked with the top investigators in the Commonwealth who were intent on eradicating organized crime groups. Not once did I ever hear any of these detectives suggest any connection between Whitey and Billy or that somehow we should not go after Whitey because of Billy. It wasn’t even mentioned as a joke because it wasn’t a realistic consideration.

People have based their belief on people who write fiction under the pretense they are biographers or professors asserting things far beyond their ken. They had no idea what was occurring in our investigations.  In the late ’70s and early ’80s I worked with the Quincy police and an elite squad headed by Captain Dave Rowell which made extensive efforts to go after Whitey. In the mid-80s Dick Bergeron of that unit working with the DEA placed electronic bugs in his car and in his condo in Quincy. None of them ever felt constrained by Billy Bulger being the president of the Senate. Nor did anyone I worked with in the state police, another agency whose budget could have been affected by Billy, suggest that there might be repercussions from him if we went after Whitey.

These false innuendos that somehow Billy’s position protected Whitey are made up merely because of their sibling relationship. Unfortunately, they’ve been picked up by some Johnny-come-lately cops who weren’t around when the action was happening. Nothing Billy ever did impeded any state investigation of Whitey.

That’s the plain and simple truth. Whitey wasn’t arrested because of two things. The FBI protected him. It created this inane program called the Top Echelon Informant program which still exists today, the gist of which is that the FBI will protect some high level gangsters who will help them go after other high level gangsters. In Boston it protected at least two Winter Hill gang leaders, Whitey and Stevie Flemmi, so that it could go after the Mafia.

The other thing that protected Whitey was his extreme disciplined.  He didn’t drink or do drugs. He maintained a low profile preferring the cover of night to hide his actions. I intercepted Stevie Flemmi and Whitey in one telephone conversation out of the tens of thousand I intercepted. Whitey said about a half-dozen words about being  back in town. Stevie’s equally laconic reply was little more than “OK.” They didn’t expose themselves.

Just as Billy’s success turned Whitey into a larger than life gangster; so did the notoriety of Whitey allow Billy to be turned into a corrupt politician. The two were locked into a death embrace. They were turned into different sides of the same coin by ignorant people looking for easy answers.

What Billy couldn’t do, as was demanded by Congress, the pretender to the presidency and the media was to turn on his brother. We’ve all heard the expression that “A prophet is honored everywhere except in his own hometown and among his own family.” That is because those closest to a person know her in a different light than those who did not grow up with her and met her later. The Whitey that Billy knows is not the one the media tells us about. How then could he be expected to turn on him?

Billy believed firmly in what is mentioned in the Bible, in Proverbs 3.3 — Do not let loyalty and faithfulness forsake you; bind them around your neck, write them on the tablet of your heart.  Billy had no choice. Whitey was his brother. He did nothing to help him but he could not condemn him as others demanded he do even if it cost him the presidency of a university.

Billy is Billy and Whitey is Whitey. Their connection to each other is as brothers but in no other way. Billy led an exemplary life as a public servant an honorific title which is much belittled today by the narrow-minded who forget that Washington, Jefferson, Lincoln, Roosevelt and others who made our country what it is today bore the same title proudly. Billy is also a faithful and loving husband and a caring father.

Whitey was none of those things. He was a public enemy engaged in a life of living outside the law. But in the end he was Billy’s brother. Billy never believed much what was said about him and he never lost hope that whatever may have been true he could change him. For that he has been reviled. He should have been praised.

 

Billy Bulger – II

A Place In The Sun

Billy Bulger was elected out of his senate district in South Boston to the Massachusetts Senate in 1970, ten years after he had been elected to the House of Representatives. In 1978 he became president of the Massachusetts Senate in which capacity he served until 1999, a total of over 17 years. Governor Michael Dukakis said of him: “There has never been any question about the integrity of the Senate since he has been president.”

I came upon an article in 1987 in the Boston Globe. A James Higgins from Vineyard Haven wrote to the Globe complaining about Billy being mentioned in an article about an incident between Whitey and some security people at Logan Airport. He said,  “I just don’t see why it was necessary to mention Billy Bulger as Whitey’s brother in the article. I don’t see the relevancy. Sen. Bulger isn’t responsible for his brother, and in this case, his brother isn’t even charged with anything.” 

The Globe Ombudsman Robert L. Kierstead responded to the letter in a column. The story was written on September 23, 1987, by Kevin Cullen, who just wrote a book about Whitey. Kierstead said: “The initial story . . . ran on the front page under the headline “Question: Just What was Whitey up to?”

On September 28, 1987 Cullen wrote a second story in the third paragraph he said, “Aside from the fact that he is the brother of Senate President William Bulger, what has distinguished James  J. (Whitey) Bulger from the other local men whose first name is always preceded by the word “reputed” is his ability to avoid brushes with the law.” The Ombudsman questioned the appropriateness of repeating Billy’s name in the second story.

The Ombudsman wrote, “Checking back in Globe files, I found that stories about the Bulger brothers rarely connected them. The Senate president’s relationship was never used in the frequent references to Whitey Bulger’s association to the Angiulos during the long trial of underworld boss Gennaro Angiulo and several of his cohorts, nor should it have been.”

The Ombudman mentioned a couple of other times when Billy’s name had  been mentioned in connection with Whitey’s, one being in 1979 in a long Globe magazine story where the Ombudman cited one paragraph that read: “Billy Bulger’s friends won’t talk about Whitey for the record. ‘In the first place, I don’t  know anything about Whitey Bulger,’ said one close political and personal associate. ‘In the second place, I don’t see what Whitey had  done or has not done has anything to do with Billy.”

The Ombudsman concluded: “Whitey Bulger has to be a cross for William Bulger and his family to bear. In addition, because of the Senate president’s disdain for the media, and his aloofness and perceived arrogance, he leaves himself open to being embarrassed by the press because of his brother, sometimes unfairly.”

“The use of their relationship must be valid. As the Globe’s in-house Glass House Views states in such cases, “We should presume the relationship is unnecessary in a story unless there is a strong reason to include it.” This includes the Bulger.”

This article by the Ombudsman is telling. Billy had been in office 27 years at the time it was written. He had been Senate president for almost 10. There’s not a hint that there is some untoward connection between him and Whitey nor the slightest suggestion he has done anything inappropriate.

I bring this up because it is nice to have a starting point. What then happened to the idea that there is no connection between Billy and Whitey to the point that in 2000 Lehr and O’Neill would title one of their chapters in their book Black Mass: Shades of Whitey and Howie Carr would write a book: The Brothers Bulger: How they Terrorized and Corrupted Boston For a Quarter Century. 

The one incident that brought this about was the Globe’s attack on Billy over the involvement of his partner Thomas Finnerty in the 75 State Street matter. There would be nothing else ever mentioned that in any manner impugned his integrity. That attack, as I will show some when time permits, was malicious and unfair and told only half the story.

The 75 State Street matter brouhaha happened in 1988. It was thoroughly investigated under the glare and demand of the Globe by both state and federal prosecutors. Two US Attorneys and two state attorney generals found Billy to have done nothing corrupt. His reputation survived it. He was appointed U Mass president in 1996. He served there honorably until willful and wily reporters on the only two newspapers in town used the relationship with Whitey, which the Ombudsman deemed irrelevant and which could not be gainsaid, into a sledge hammer with which to beat Billy.

You know the rest of the story. Billy had no forum in which to defend himself. Those who should have stood up for him broke their swords and lowering crept away and left the field fearful of the press knowing that she with the pen has the last word. A Congressional Committee that set about to investigate the FBI having realized it bit off more than it could chew decided instead to investigate Billy. The man who would be president, looking to the future, decided it would be politically correct to follow the voice of the media. He forced Billy’s resignation from the presidency of the University of Massachusetts by threatening to appoint his open enemies to its board of trustees.

 

 

Billy Bulger

The Song Ended Before The Dance Was Over

I’ve been away from the reevaluation of Whitey’s life for a week or so but I will return to it as soon as I can. Before going back to it during this week of Presidents Day I will write my thoughts about another president, Billy Bulger.  I do so because I’ve thought of him after reading some articles in the New York Times concerning the resignation of Pope Benedict.

Billy got elected to the Massachusetts Legislature in 1960 and served there until the mid-90s. He left when he was appointed president of the University of Massachusetts. Billy’s political career was in the tradition of the old-time Irish Catholic politicians from South Boston, John McCormack, and Joe Moakley.

All were guided by the social teachings of the Catholic Church in their service to the public. Their ideas are far removed from those many have today. Ross Douthat said it a lot better than I could the other day.  “the Catholic vision of the good society — more egalitarian than American conservatism and more moralistic than American” liberalism . . .”  was the camp in which Billy pitched his tent.  Today as Douthat pointed out, “Republicans are more likely to channel Ayn Rand than Thomas Aquinas, and a strident social liberalism holds the whip hand in the Democratic Party.”   

Billy was strong in his faith and even stronger in his belief that as a politician his first job was to alleviate the sufferings of “them who have little.”  Helping those in need was part and parcel of who Billy was. He knew where he came from. He knew he worked hard to achieve his good fortune. He knew others did not have his intellectual abilities, or drive, or skill with language but because he had these gifts he did not condemn the others for their failures but believed as he was taught, “there but for the Grace of God go I.” He worked hard to ensure the benefits needed by the least among us were provided to them.

Billy put himself out to the public to be elected and rubbed shoulders with the poorest of the poor. He would keep his common touch while moving through politics where he became powerful and gained the respect of all who had dealings with him. He was of the old-time school, he rewarded his friends and didn’t coddle his enemies. He prized loyalty and  a person’s word. He honored and revered his parents who with little gave him as much as they could which was a good home in which to grow up. As part of that, he knew that his parents loved their children and expected their children to love each other. He kept to his parents wishes and suffered with them when his brother Whitey became a criminal.

As any parent knows, you can give your children your love, the best of care and a fine home in which to grow up but what they will become is up to them. Kahil Gibran put it best about children: “You may give them your love but not your thoughts, For they have their own thoughts. You may house their bodies but not their souls, For their souls dwell in the house of tomorrow,. . . ”

Whitey’s future was foretold when he was young. Billy’s also could be seen. The former, the older brother, wild and untamed; the latter, studious and diligent. They were as unlike as two brothers could be yet they were still brothers.

It would be a relationship that would damage both even though they lived separate lives. They were linked together not by choice but by birth. Whitey, without Billy, would be just another evil criminal. He does not come anywhere near the malignancy of our local hoodlums the Flemmis, the Martoranos,  the Salemmes, Angiulos, or Baione.

Whitey was put at the top of the criminal heap for the sole purpose of hurting Billy. Billy never did anything with respect to Whitey’s criminal enterprises other than to pray that somehow Whitey would change. Billy’s service to the people of Massachusetts for over 40 years is a model for any politician. But the knives were out for him. Those who never stood for elected office and faced the people, a malignant media abetted by malicious and ignorant men, seeking profit from slander, or media praise and fame, held the floor. They threw Billy onto it and stomped on his reputation.

We are told to judge a person by his friends not by his relatives. We’ve seen who were Whitey’s friends. Billy’s were among the most reputable in society. When I think of Billy I’m reminded of Shakesperian tragedies where we see men at the top of their game undergoing a sudden reversal of fortune brought about by a tragic flaw. We know that “the central impression of the tragedy is waste.”