Building a Case Against Whitey: A U

282CRIMINAL AND CIVIL CONFINEMENT[Vol. 38:2812012]BUILDING A CASE AGAINST WHITEY283

Building a Case Against Whitey: A U.S. Attorneys Tale from Inside James Bulgers Prosecution

Donald K. Stern(Editors Note: The following is a transcript of a live symposium entitled In the Wake of Whitey: Exploring the Legal Responses to Organized Crime. The symposium took place on November 15, 2011 in the Arlington Room of the Radisson Boston Hotel. The symposium was presented by the New England Journal on Criminal and Civil Confinement. The symposium was designed to address the legal issues involved in organized crime, prosecuting James Whitey Bulger, and the governments responses to Bulgers criminal syndicate. The morning panelHon. Gerald Alch, Prof. Michael Cassidy, Lee Coppola, Kevin Cullen, and James Wedickfocused on the many general legal issues that may arise with organized crime. The afternoon panelTom Foley, Shelley Murphy, Ralph Ranalli, and Donald Sternfocused on James Whitey Bulger and their personal experiences with the capture of Bulger.

Attorney Donald Stern was the final speaker at the symposium. Attorney Stern served as the United States Attorney for the District of Massachusetts from 1993 through 2001 when James Whitey Bulger was indicted. With his permission, it is our privilege to publish an edited transcript of his speech. This portion has been edited in form but not in content. During the editing process, a distinct effort was made to retain the original tone of the panelists remarks. The Journal wishes to thank Attorney Stern for extending us this opportunity to share his lecture with you.

There is so much ground to cover. As you can tell, the panelists could keep going all day and all night. We probably could fill that time with stories and observations and describe the scars we got along the way.It is a lot of fun to do this panel. Shelly Murphy, Ralph Ranalli, and I got to know each other even though we had different roles. They are not on the inside; they are writing on the outside. There is no question that the media coverage of this long saga, even pre-indictment, pre-charge, and then going forward recently with James Whitey Bulgers capture in California, played an important role. As Ill allude to later, you need the watchdogs. You need the people asking questions, both on the inside, like the Tom Foleys of the world who do not accept the conventional wisdom, and the people on the outside.Tom was part of an incredible on the ground investigative team to which he has alluded. Fred Wyshak, Brian Kelly, and Jamie Herbert were the lead prosecutors in the U.S. Attorneys Office. They are the ones with whom I interacted the most. This case ended up occupying a lot of my time, for good reason, so I got to know the investigators personally: Tom Foley, Dan Doherty, Steve Johnson, and others who were deeply involved in this case. To say that they sweat blood and tears on this case is an understatement. Bulger and Flemmi had the misfortune of coming up against this buzzsaw of integrity, and, if it had been a different group, different prosecutors, or a different set of investigators, there might have been a different outcome.I appreciate one of the things Tom said because it made me feel a little bit better. He described his early days on the job in the state police, as nave and believing. I was probably inand he no doubt would be the first to agree with thisthat category when I became U.S. Attorney in 1993. The investigation was just beginning. It hadnt quite ripened or matured, but it was beginning. I would hear these stories sometimes from Tom and sometimes from the prosecutors about the FBI. I would hear from the FBI, You have to get rid of the prosecutors you have working for you on this. They dont like the FBI, and they are in the pocket of the state police. My reaction was: Hey, grow up. Everyone just calm down, were professionals. Were going to keep this investigation going. It took some time for me to fully appreciate the problems.We had really two investigations that were parallel, but not entirely separate. You had the Winter Hill investigation (the Bulger-Flemmi investigation that was led principally by the state police and DEA), and then you had the La Cosa Nostra (LCN) Mafia investigation (Frank Salemme was then running the LCN in Boston), which was being led largely by the FBI. The plan was that these investigations would intersect at some point and tell the story through a RICO indictmentto explain that, although there were separate criminal enterprises, these parties collaborated and worked together. These investigations were going to be in some ways a unique Boston story because you really didnt have an organized crime alternative to the Mafia in other cities. However, as these cases were progressing, countless hours were spent trying to referee disputes and to understand the interplay of history and bad blood among law enforcement agencies. It is the old adage that you have to see it and experience it yourself; you cannot always rely upon other people. It was through the course of experiencing these investigations that I realized that Tom Foley, Fred Wyshak, and others were more right than, at least in the beginning, I cared to believe.The decision was made to return indictments sometime in late 1994, early 1995. We were very much concerned about the arrests and being able to find these guys. Tom is right; there was a concern about confidentiality and secrecy. A decision was made for tactical reasons that when Flemmi was found, once we were ready, Flemmi would be the first to be arrestedknowing that the word of his arrest would get out (you couldnt stop it) and the other arrests would be more difficult to complete. To increase secrecy, we decided to do this not by indictmentwhich is the way this case would usually be donebut by complaint. This is what tripped up Flemmi. Flemmi, we later found out, had been tipped off by John Connolly (as had Bulger), and the FBI was likely keeping track of the indictments timing. Bulger and Flemmi were keeping track of the life of the grand jury. The FBI knew when the case was being taken down, and someone gave Connolly (who was at this point a former agent) that information.So, we did it by complaint. I think Flemmi was visiting his son at a bar, and it was nine or ten oclock at night, or something like that, near Faneuil Hall. Flemmi made the mistake of coming back to Boston. I think they were doing construction or some work at the bar, as I recall. Flemmi wanted to supervise what was going on. It was a tourist place but a little rougher than your typical Faneuil Hall tourist place. Anyway, he was arrested. I think he was with a girlfriend, and there was no basis to arrest her. The state police tried to keep her isolated, but she got to a phone. Believe it or not, there were pay phones in those days. She started calling around, and that was the end of keeping things secret.We had our suspicions at the time, but it wasnt until many years later that we could establish that John Connolly tipped them off. Frank Salemme was a fugitive. He was in Florida and was arrested six or nine months later. Matarano was in Florida; he was arrested. It is an incredible saga, but what I want to do today is move past the specific details of the story. Im looking forward to Toms book and probably others being written as we speak, but I wanted to describe some of the broader lessons from this.The first lesson is that informants are big trouble. Tom and I may disagree on this, I think, but Ive been asked, Should we therefore not have informants? Well, that is not what I would do. I think a properly run, properly supervised, trained, and guided informant program is important for law enforcement. Certainly, no one would dispute that if we had an informant who was in Al Qaeda and was Bin Ladens driver or something like that, we would be trying to nurture that relationship to try to get information.But to say that an informant program can exist and should exist is not to say what that should be. As Ralph Ranalli has gone through the history, the Top Echelon Program was sometimes abused. In some cases, the only thing that mattered was getting the Mafia and statistics. The handlers of informants were the prima donnas. They didnt just get monetary bonuses; they were the princes of law enforcement. There was a certain cach that went into that. Tom made reference to affidavits filed in court to support wiretap applications. We later learned that some of the information about Bulger and Flemmi that was put in the affidavits was put in by FBI agents to make their informants look good and, in fact, was not true. That is another way to say that the affidavits deceived the judicial system and deceived the court because they were pumping up the bona fides of Winter Hill as a way of keeping them as informants.When we were going through all of this, I made a promise to myself that I would do whatever I could do to help change the system so that this would never happen again; the rest of the country could really learn from what we went through in Boston. There were attorney general guidelines. Attorney General Levi had promulgated the guidelines back when he was attorney general in a post-Watergate period. There were FBI guidelines, but the big gorilla, so to speak, was the attorney general guidelines. But these guidelines were not being followed. In any event, these guidelines did not provide the right type of guidance. There was inadequate oversight and supervision. So I went to then-Attorney General Reno and met with her and said, Look, you have to do something about this. You raise your hand and you volunteer, but this was something I wanted to do, so she made me chairman of a committeea working groupto revise the guidelines.We worked for probably eight, twelve months and came up with a number of reforms for oversight. We made it clear, for example, that FBI agents and other federal agents could not promise immunity. A lot of promises were made in the field: Hey, you dont have to worry about thatIll take care of you; Oh, youre committing a crime? Ill take care of you; If you get charged, Ill speak up for you. You dont have to worry. It almost didnt matter what the crime was. So that was changed.At the end of the day, there were some very positive changes. I personally felt good about that. This was one of the last acts of Attorney General Reno: to sign the new informant guidelines. She actually gave me the pen, which I have since misplaced, so I do not have it. It was easy to lose because it wasnt a ceremonial pen; it was a little Bic pen that she used to sign it.I share Tom Foleys disappointment that not all of those reforms have stuck. There does not seem to be the kind of commitment that I would have hoped. You see this with the Inspector Generals report. There was some watering down of the guidelines, which were signed by Attorney General Reno in 2001, in the post-9/11 era because the whole Department of Justice became more Washington, D.C. centric as a way of dealing with terrorism. The guidelines, by the way, do not apply internationally, just to domestic investigations. Regardless, there were some changes that stuck and are still in place. So this is one of the lessons here: informants are trouble. You do not trust informants. You get information from informants. You do not give information to informants. You do not take gifts from informants. You do not make friends. One thing that came out in the hearings before Judge Wolf was that Connolly and others would socialize with Bulger and Flemmi. They would drink wine with them. They would have dinner with them. You are not friends. There was no one to supervise the interactions of the handlers and their informants. John Morris, Connollys supervisor, was corrupt. He took bribes from Bulger and Flemmi, and that was the supervisory structure that was in place for John Connolly.The second point is that some bad deals are worth making. Tom referred to one of them with John Matarano. Tom Foley explained the angst we all went throughto bless and approve a plea agreement for a guy who admitted to killing twenty people. It is, at the very least, extremely morally ambiguous and suspect. I said at the time that it was a terrible deal. The only thing worse than doing the deal was not doing the deal. I feel that it was the right thing to do even though we were heavily criticized. I had members of Congress calling for an investigation of how the Department of Justice could do this. But at the time, we had no evidence that John Matarano had committed any murders. I remember sitting with Tom around a big conference table in my office and we were trying to determine if we had any independent evidence that we could use to convict this guy of even a single murder. We went back to the Boston police, to the Middlesex District Attorneys office, and every jurisdiction that we knew at the time that he may have been involved with based upon his proffer. The proffer means that Matarano will begin to describe and give information, but you cannot use that information. That is part of the deal. The criminal defendant has a Fifth Amendment right not to incriminate himself. Hes not going to give you information about crimes hes committed unless hes got some protection, so you do that under a proffer agreement. You cannot use those words directly against a defendant or a potential defendant. At the end of the day, we had no independent evidence to charge Matarano with anything other than with what he had already been charged. I think he was facing seven years in prison at the time.We did get a modest enhancement through the plea deal. I think Matorano ended up serving thirteen or fourteen years. More importantly, he gave us important information in the case against Bulger and Flemmi. Matorano gave us information that led to the prosecution and conviction of corrupt FBI agent John Connolly, and he gave us a whole lot of other information. It broke open the log jam. It was very important, I thought at the time and I think even more so now, to burst this boil that existed in law enforcement. It was and still remains a sad chapter in law enforcement. The FBI and the state police cooperated on 95% of the cases. Ninety-five percent of the time troopers and line agents cooperated. But this problem, this corruption, this relationship would never ever have gotten better, even when the Tom Foleys moved on and retired. Cops have a long memory: a very, very long memory. This boil would never have been pierced until the truth could emerge. Im not sure the full truth has even yet emerged. Maybe the full truth will never come out, but this was an important step. This is another lesson: some deals are worth making even though they are terrible deals.Let me talk about the fugitive investigation. Ive had my doubts over the years. Im glad Bulger was caught. But I do think (and Ive said this publicly so this is not a new thing) that there needs to be some accounting as to why it took so long to catch him. Now, he looks like everyones grandfather, and I laughed when I heard Toms story because I always sort of feared the same thingthat I would be somewhere and he would be standing next to me. When he was caught in Southern California, where I go often, I thought, Maybe I was in the same restaurant with this guy. I was glad to hear that he mostly stayed inside. That was a good thing because that would have been an embarrassing picture.When he was captured, he was eighty-one. So what? The fact that he was finally captured and would finally see a courtroom is very, very satisfying. He could be charged tomorrow with possession of a machine gun. The guns that were found in the wall in Santa Monica were some heavy weapons, including a machine gun. I believe there is a federal mandatory minimum sentence of twenty years for this gun possession. He is a convicted felon in possession. The government could try him tomorrow just on the possession of that machine gun. I do not think it would be a difficult case. It would probably be a two-day trial. Im glad that is not the route they are taking. Im glad that they are going to try the murder cases. He was ultimately charged with nineteen murders. Im glad the story will be told. Im pleased for the victims because there will be a sense of closure. I dealt with some of the victims families a little bit, but Tom and the others dealt with them a lot, including the families of the bodies that were pulled out of the marshes in Dorchester, in some cases with their fingers chopped off and teeth removed so they wouldnt be identified when they were found. Such gruesome murderspeople killed by the most violent, sadistic, cold-blooded murderers that you can imagine.Let me next talk about cooperation with law enforcement. As I said, I think this was an important step to have taken. I do think things are better in the post-9/11 era and better in Massachusetts now than they had been, but it is not perfect. The FBI is more willing to share information. Again, I think that is less a function of this case and more a function of 9/11 and the fact that the cop on the beat probably has better knowledge about what is happening in the community than the FBI agent. That is just a plain fact, and you have to nurture those relationships and get that information.There is one thing we have not touched on, and I will just mention it in passing. There has been a lot written about James Whitey Bulger and his standing in the Boston community. This may be a particularly Boston story. Part of his story was the kind of good-brother, bad-brother thing. Whitey was the bad brother. His brother, Bill Bulger, was the Senate president and president of the University of Massachusetts. This story ignites peoples interests. But there was a time, and it was around the time that he was being heavily investigated by us, that there was a little bit of a Robin Hood aura about him. I thought at the time and I think more so nowthat is crazy. While everyone might not have known how violent he really was or known about the nineteen murders he was charged with in 1999, there is nothing glamorous about being a crime boss. Yet, there was a little bit of what I would call acceptance, both among people in the media and political people, of Whiteys elevated standing. We now know that some of that was pumped up by the FBI and John Connolly, who protected him.Here are the final two things I want to say. There was a reaction to whether the victims families would be allowed to speak at the detention hearing for Catherine Grieg. The defense lawyers objected to it. The magistrate judge allowed it. This was a very good thing, that the victims families could have some role. Bail was never an issue for Whitey.

Ive been out of the U.S. Attorneys offices for ten years, and Toms description of the civil cases makes me rethink a decision that I made, though probably there was no other choice. When the civil cases started to come in, I remember talking to Fred Wyshak. The decision was made to recuse the office because we needed to develop a relationship with the families of the victims. They needed to see us, the U.S. Attorneys Office, as people who would support them. We could not be on the other side, even if it was a friendly other side. I assumed it would be a friendly other side, but we would still be on the other side. Someone has to represent the interests of the United States. I remember talking to the Attorney General saying we needed to recuse ourselves. I do not know that it was legally required, but it was kind of messy. I did not want the U.S. Attorneys Office here to have anything to do with the civil cases. But, hearing how that played out has given me some pause. Maybe there was another way to do it. Maybe if we had kept it within the office but had a wall so that Fred, Brian, and others wouldnt be involved in the civil case, the outcome would have been different. There is some effort in Congress to pass a special bill for those families, to give them some compensation. Clearly, there is some FBI responsibility there.The final point I want to make is that long memories can be good sometimes. The core team of prosecutorsFred, Brian, and Jamieare still there. They are still working this case. It would have been difficult for a new prosecutor to come in and try this case from scratch. By the way, Fred went down to Miami and helped try the murder case against John Connolly. He was designated as a special state prosecutor. There is so much history here, you could not just pick up the grand jury minutes or some state police reports and get the flavor of it. The fact that law enforcement remembered the impact that these cases represented in Boston is important. Ill be able to sit back and now watch this unfold. I can say this now that I am not in government: I believe there is sufficient evidence to convict him. My hope is that Bulger will never get out of prison. And that is a good thing.* Donald K. Stern is currently Senior Counsel at Cooley LLP.

. Audio CD: Symposium entitled In the Wake of Whitey: Exploring the Legal Responses to Organized Crime, held by New Eng. J. on Crim. & Civ. Confinement and New England Law | Boston (Nov. 15, 2011) [hereinafter Audio CD: Symposium] (on file with NEJCCC Editorial Board).

. Id.

.Id.

.Cadillac Frank Salemme Caught by FBI in Florida, Plain Dealer (Aug. 13, 1995), at A7, available at 1995 WLNR 5048029.

.Jonathan Wells, Hit Man Says Connolly Helped Protect Mob, Bos. Herald (May 14, 2002), News, at 5, available at 2002 WLNR 749749.

. Audio CD: Symposium, supra note 1.

.Id.

.Id.

. Id.

.Id.

.See Profile of John Martorano, Boston.com, http://www.boston.com/news/

specials/whitey/articles/profile_of_john_Martorano (last visited Jan. 11, 2012) (stating that Martorano was sentenced to twelve years in prison).

.David Boeri, The Martyrdom of John Connolly, Bos. Mag. (Sept. 2008), http://www.bostonmagazine.com/articles/the_martyrdom_of_john_connolly/page4.

.See Brian MacQuarrie, Retired, Former Police Reflect on Efforts to Get Mobster, Boston.com (June 24, 2011), http://articles.boston.com/2011-06-24/news/29699825_1_tom

-foley-bulger-corrupt-fbi-agent.

.Audio CD: Symposium, supra note 1.

. Cynthia R. Fagen, Whitey Bulger Hid Guns, Cash in Makeshift Safes in Apartment, N.Y. Post (July 14, 2011), http://www.nypost.com/p/news/national/hole_in_the

_wall_gang_xuvwmCnlSylHE5JbahBMmN.

.See Ray Gustini, Whitey Bulger Pleads Not Guilty on 19 Murder Charges, Atlantic Wire (July 6, 2011), http://www.theatlanticwire.com/national/2011/07/whitey-bulger-pleads-not-guilty-19-murder-charges/39644/.

.Family of Alleged Bulger Victim Speaks Out, CW56.com (June 23, 2011), http://www.cw56.com/news/articles/local/12004654453733/family-of-alleged-bulger-victim -speaks-out/.

.Rick Klein, Tale of Two Brothers: Whitey and Billy Bulgers Rise to Power in Crime and Politics, ABCNews.go.com (June 23, 2011), http://abcnews.go.com/Politics/

james-whitey-bulger-billy-bulger-powerful-brothers-powerful/story?id=13915585.

.See Laurel J. Sweet, Experts Divided on Victims Kin Speaking at Greig Hearing, Bos. Herald (July 13, 2011), http://bostonherald.com/news/regional/view/2011_0713

experts_divided_on_victims_kin_speaking_at_greig_hearing.

.Kin to Testify in Mass. on Bulger Girlfriend Bail, Fox News (July 12, 2011), http://www.foxnews.com/us/2011/07/12/kin-to-testify-in-mass-on-bulger-girlfriend-bail/.

.David Boeri, Bulger Victims Speak of Pain, Loss at Greigs 2nd Bail Hearing, WBUR (July 14, 2011, 6:56 AM), http://www.wbur.org/2011/07/14/greig-hearing-2.

.See Kevin Cullen, Ever the Wiseguy, and Sharp as a Tack, Bos. Globe June 25, 2011, News, at 8, available at 2011 WL 12663213.

.Audio CD: Symposium, supra note 1.

.Shelley Murphy, Kerry Seeks $8.5m for Bulger Victims Families: Senate Bills Tied to Men Allegedly Killed by Gangster, Bos. Globe (Nov. 1, 2011), http://www.bostonglobe.com/metro.2011/11/01/kerry-seeks-for-bulger-victims-families/Fkq 4jaGD4K8Uf1QeDIBizM/story.html.

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