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

ution
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 1 ! "#11 in the $rlington %oom of the %adisson &oston 'otel. The symposium was presented by the New England o!rnal on Criminal and Ci"il Confinement. The symposium was designed to address the legal issues involved in organi(ed crime! prosecuting )ames *+hitey, &ulger! and the government-s responses to &ulger-s criminal syndicate. The morning panel.'on. /erald $lch! 0rof. 1ichael 2assidy! 3ee 2oppola! Kevin 2ullen! and )ames +edick.focused on the many general legal issues that may arise with organi(ed crime. The afternoon panel.Tom 4oley! Shelley 1urphy! %alph %analli! and Donald Stern .focused on )ames *+hitey, &ulger and their personal e5periences with the capture of &ulger. $ttorney Donald Stern was the final speaker at the symposium. $ttorney Stern served as the 6nited States $ttorney for the District of 1assachusetts from 1778 through "##1 when )ames *+hitey, &ulger was indicted. +ith 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 panelist-s remarks. The o!rnal wishes to thank $ttorney Stern for e5tending us this opportunity to share his lecture with you.

There is so much ground to cover. $s you can tell! the panelists could keep going all day and all night. +e probably could fill that time with stories and observations and describe the scars we got along the way. 9t is a lot of fun to do this panel. Shelly 1urphy! %alph %analli! and 9 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 ;uestion that the media coverage of this long saga! even pre<indictment! pre<charge! and then going forward recently with )ames *+hitey, &ulger-s capture in 2alifornia! played an important role. $s 9-ll allude to later! you need the watchdogs.
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> Donald K. Stern is currently Senior 2ounsel at 2ooley 330.

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"? CRI#IN$L $N% CI&IL CON'INE#EN( @Aol. 8B:"B1 Cou need the people asking ;uestions! both on the inside! like the Tom 4oleys 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.1 4red +yshak! &rian Kelly! and )amie 'erbert were the lead prosecutors in the 6.S. $ttorney-s Dffice. They are the ones with whom 9 interacted the most. This case ended up occupying a lot of my time! for good reason! so 9 got to know the investigators personally: Tom 4oley! Dan Doherty! Steve )ohnson! and others who were deeply involved in this case. To say that they sweat blood and tears on this case is an understatement. &ulger and 4lemmi had the misfortune of coming up against this bu((saw 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. 9 appreciate one of the things Tom said because it made me feel a little bit better. 'e described his early days on the Eob in the state police! as naFve and believing." 9 was probably in.and he no doubt would be the first to agree with this.that category when 9 became 6.S. $ttorney in 1778. The investigation was Eust beginning. 9t hadn-t ;uite ripened or matured! but it was beginning. 9 would hear these stories sometimes from Tom and sometimes from the prosecutors about the 4&9. 9 would hear from the 4&9! *Cou have to get rid of the prosecutors you have working for you on this. They don-t like the 4&9! and they are in the pocket of the state police., 1y reaction was: *'ey! grow up. Gveryone Eust calm down! we-re professionals. +e-re going to keep this investigation going., 9t took some time for me to fully appreciate the problems. +e had really two investigations that were parallel! but not entirely separate. Cou had the +inter 'ill investigation Hthe &ulger<4lemmi investigation that was led principally by the state police and DG$I! and then you had the 3a 2osa Nostra H32NI 1afia investigation H4rank Salemme was then running the 32N in &ostonI! which was being led largely by the 4&9. The plan was that these investigations would intersect at some point and tell the story through a %92D indictment.to e5plain that! although there were separate criminal enterprises! these parties collaborated and worked together. These investigations were going to be in some ways a uni;ue &oston story because you really didn-t have an organi(ed crime alternative to the 1afia in other cities. 'owever! 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
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. $udio 2D: Symposium entitled In the Wake of Whitey: Exploring the Legal Responses to Organized Crime ! held by NG+ GN/. ). DN 2%91. J 29A. 2DN49NG1GNT and New Gngland 3aw K &oston HNov. 1 ! "#11I @hereinafter $udio 2D: SymposiumL Hon file with NG)222 Gditorial &oardI. " . Id)

"#1"L *+IL%IN, $ C$-E $,$IN-( .W/I(E01 "M agencies. 9t is the old adage that you have to see it and e5perience it yourself: you cannot always rely upon other people. 9t was through the course of e5periencing these investigations that 9 reali(ed that Tom 4oley! 4red +yshak! and others were more right than! at least in the beginning! 9 cared to believe. The decision was made to return indictments sometime in late 177N! early 177 . +e 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. 8 $ decision was made for tactical reasons that when 4lemmi was found! once we were ready! 4lemmi would be the first to be arrested. knowing that the word of his arrest would get out Hyou couldn-t stop itI and the other arrests would be more difficult to complete. To increase secrecy! we decided to do this not by indictment.which is the way this case would usually be done.but by complaint. This is what tripped up 4lemmi. 4lemmi! we later found out! had been tipped off by )ohn 2onnolly Has had &ulgerI! and the 4&9 was likely keeping track of the indictment-s timing. &ulger and 4lemmi were keeping track of the life of the grand Eury. The 4&9 knew when the case was being taken down! and someone gave 2onnolly Hwho was at this point a former agentI that information. So! we did it by complaint. 9 think 4lemmi was visiting his son at a bar! and it was nine or ten o-clock at night! or something like that! near 4aneuil 'all. 4lemmi made the mistake of coming back to &oston. 9 think they were doing construction or some work at the bar! as 9 recall. 4lemmi wanted to supervise what was going on. 9t was a tourist place but a little rougher than your typical 4aneuil 'all tourist place. $nyway! he was arrested. 9 think he was with a girlfriend! and there was no basis to arrest her. The state police tried to keep her isolated! but she got to a phone. &elieve it or not! there were pay phones in those days. She started calling around! and that was the end of keeping things secret. +e had our suspicions at the time! but it wasn-t until many years later that we could establish that )ohn 2onnolly tipped them off. 4rank Salemme was a fugitive. 'e was in 4lorida and was arrested si5 or nine months later.N 1atarano was in 4lorida: he was arrested. 9t is an incredible saga! but what 9 want to do today is move past the specific details of the story. 9-m looking forward to Tom-s book and probably others being written as we speak! but 9 wanted to describe some of the broader lessons from this. The first lesson is that informants are big trouble. Tom and 9 may disagree on this! 9 think! but 9-ve been asked! *Should we therefore not have informantsO, +ell! that is not what 9 would do. 9 think a properly run!
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"B CRI#IN$L $N% CI&IL CON'INE#EN( @Aol. 8B:"B1 properly supervised! trained! and guided informant program is important for law enforcement. 2ertainly! no one would dispute that if we had an informant who was in $l Paeda and was &in 3aden-s driver or something like that! we would be trying to nurture that relationship to try to get information. &ut to say that an informant program can e5ist and should e5ist is not to say what that should be. $s %alph %analli has gone through the history! the Top Gchelon 0rogram was sometimes abused. ? 9n some cases! the only thing that mattered was getting the 1afia and statistics. The handlers of informants were the prima donnas. They didn-t Eust get monetary bonuses: they were the princes of law enforcement. There was a certain cachQ that went into that. Tom made reference to affidavits filed in court to support wiretap applications.M +e later learned that some of the information about &ulger and 4lemmi that was put in the affidavits was put in by 4&9 agents to make their informants look good and! in fact! was not true. That is another way to say that the affidavits deceived the Eudicial system and deceived the court because they were *pumping up, the bona fides of +inter 'ill as a way of keeping them as informants. +hen we were going through all of this! 9 made a promise to myself that 9 would do whatever 9 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 &oston. There were attorney general guidelines. $ttorney /eneral 3evi had promulgated the guidelines back when he was attorney general in a post<+atergate period. There were 4&9 guidelines! but the *big gorilla!, so to speak! was the attorney general guidelines. &ut these guidelines were not being followed. 9n any event! these guidelines did not provide the right type of guidance. There was inade;uate oversight and supervision. So 9 went to then<$ttorney /eneral %eno and met with her and said! *3ook! you have to do something about this., Cou raise your hand and you volunteer! but this was something 9 wanted to do! so she made me chairman of a committee.a working group.to revise the guidelines. +e worked for probably eight! twelve months and came up with a number of reforms for oversight. +e made it clear! for e5ample! that 4&9 agents and other federal agents could not promise immunity. $ lot of promises were made in the field: *'ey! you don-t have to worry about that .9-ll take care of you,: *Dh! you-re committing a crimeO 9-ll take care of you,: *9f you get charged! 9-ll speak up for you. Cou don-t have to worry., 9t almost didn-t matter what the crime was. So that was changed. $t the end of the day! there were some very positive changes. 9 personally felt good about that. This was one of the last acts of $ttorney /eneral %eno: to sign the new informant guidelines. She actually gave me the pen! which 9 have since misplaced! so 9 do not have it. 9t was easy to
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$udio 2D: Symposium! s!pra note 1. Id)

"#1"L *+IL%IN, $ C$-E $,$IN-( .W/I(E01 "7 lose because it wasn-t a ceremonial pen: it was a little &ic pen that she used to sign it. 9 share Tom 4oley-s disappointment that not all of those reforms have stuck.B There does not seem to be the kind of commitment that 9 would have hoped. Cou see this with the 9nspector /eneral-s report. There was some watering down of the guidelines! which were signed by $ttorney /eneral %eno in "##1! in the post<7R11 era because the whole Department of )ustice became more *+ashington! D.2. centric, as a way of dealing with terrorism. The guidelines! by the way! do not apply internationally! Eust to domestic investigations. %egardless! there were some changes that stuck and are still in place. So this is one of the lessons here: informants are trouble. Cou do not trust informants. Cou get information from informants. Cou do not gi"e information to informants. Cou do not take gifts from informants. Cou do not make friends. Dne thing that came out in the hearings before )udge +olf was that 2onnolly and others would sociali(e with &ulger and 4lemmi. They would drink wine with them. They would have dinner with them. Cou are not friends. There was no one to supervise the interactions of the handlers and their informants. )ohn 1orris! 2onnolly-s supervisor! was corrupt. 'e took bribes from &ulger and 4lemmi! and that was the supervisory structure that was in place for )ohn 2onnolly. The second point is that some bad deals are worth making. Tom referred to one of them with )ohn 1atarano. 7 Tom 4oley e5plained the angst we all went through to bless and approve a plea agreement for a guy who admitted to killing twenty people.1# 9t is! at the very least! e5tremely morally ambiguous and suspect. 9 said at the time that it was a terrible deal. The only thing worse than doing the deal was not doing the deal. 9 feel that it was the right thing to do even though we were heavily critici(ed. 9 had members of 2ongress calling for an investigation of how the Department of )ustice could do this. &ut at the time! we had no evidence that )ohn 1atarano had committed any murders. 9 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. +e went back to the &oston police! to the 1iddlese5 District $ttorney-s office! and every Eurisdiction that we knew at the time that he may have been involved with based upon his proffer. The proffer means that 1atarano will begin to describe and give information! but you cannot use that information. That is part of the deal. The criminal defendant has a 4ifth $mendment right not to incriminate himself. 'e-s not going to give you information about crimes he-s committed unless he-s got some protection! so you do that under a proffer agreement. Cou cannot use those
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8# CRI#IN$L $N% CI&IL CON'INE#EN( @Aol. 8B:"B1 words directly against a defendant or a potential defendant. $t the end of the day! we had no independent evidence to charge 1atarano with anything other than with what he had already been charged. 9 think he was facing seven years in prison at the time. +e did get a modest enhancement through the plea deal. 9 think 1atorano ended up serving thirteen or fourteen years. 11 1ore importantly! he gave us important information in the case against &ulger and 4lemmi. 1atorano gave us information that led to the prosecution and conviction of corrupt 4&9 agent )ohn 2onnolly! 1" and he gave us a whole lot of other information. 9t broke open the log Eam. 9t was very important! 9 thought at the time and 9 think even more so now! to burst this boil that e5isted in law enforcement. 9t was and still remains a sad chapter in law enforcement. The 4&9 and the state police cooperated on 7 S of the cases. Ninety<five percent of the time troopers and line agents cooperated. &ut this problem! this corruption! this relationship would never ever have gotten better! even when the Tom 4oleys moved on and retired. 2ops have a long memory: a very! very long memory. 18 This boil would never have been pierced until the truth could emerge. 9-m not sure the full truth has even yet emerged. 1aybe 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. 3et me talk about the fugitive investigation. 9-ve had my doubts over the years. 9-m glad &ulger was caught. &ut 9 do think Hand 9-ve said this publicly so this is not a new thingI that there needs to be some accounting as to why it took so long to catch him. Now! he looks like everyone-s grandfather! and 9 laughed when 9 heard Tom-s story 1N because 9 always sort of feared the same thing.that 9 would be somewhere and he would be standing ne5t to me. +hen he was caught in Southern 2alifornia! where 9 go often! 9 thought! *1aybe 9 was in the same restaurant with this guy., 9 was glad to hear that he mostly stayed inside. That was a good thing because that would have been an embarrassing picture. +hen he was captured! he was eighty<one. So whatO The fact that he was finally captured and would finally see a courtroom is very! very satisfying. 'e could be charged tomorrow with possession of a machine
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) -ee 5rofile of ohn #artorano! &DSTDN.2D1! http:RRwww.boston.comRnewsR specialsRwhiteyRarticlesRprofileTofTEohnT1artorano Hlast visited )an. 11! "#1"I Hstating that 1artorano was sentenced to twelve years in prisonI. 1" . David &oeri! (he #artyrdom of ohn Connolly! &DS. 1$/. HSept. "##BI! http:RRwww.bostonmaga(ine.comRarticlesRtheTmartyrdomTofTEohnTconnollyRpageN. 18 ) -ee &rian 1acPuarrie! Retired6 'ormer 5oli3e Refle3t on Efforts to ,et #o4ster! &DSTDN.2D1 H)une "N! "#11I! http:RRarticles.boston.comR"#11<#?< "NRnewsR"7?77B" T1Ttom <foley<bulger<corrupt<fbi<agent. 1N . $udio 2D: Symposium! s!pra note 1.

"#1"L *+IL%IN, $ C$-E $,$IN-( .W/I(E01 81 gun. The guns that were found in the wall in Santa 1onica were some heavy weapons! including a machine gun. 1 9 believe there is a federal mandatory minimum sentence of twenty years for this gun possession. 'e is a convicted felon in possession. The government could try him tomorrow Eust on the possession of that machine gun. 9 do not think it would be a difficult case. 9t would probably be a two<day trial. 9-m glad that is not the route they are taking. 9-m glad that they are going to try the murder cases. 'e was ultimately charged with nineteen murders. 1? 9-m glad the story will be told. 9-m pleased for the victims because there will be a sense of closure. 9 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 wouldn-t be identified when they were found.1M Such gruesome murders.people killed by the most violent! sadistic! cold<blooded murderers that you can imagine. 3et me ne5t talk about cooperation with law enforcement. $s 9 said! 9 think this was an important step to have taken. 9 do think things are better in the post<7R11 era and better in 1assachusetts now than they had been! but it is not perfect. The 4&9 is more willing to share information. $gain! 9 think that is less a function of this case and more a function of 7R11 and the fact that the cop on the beat probably has better knowledge about what is happening in the community than the 4&9 agent. That is Eust a plain fact! and you have to nurture those relationships and get that information. There is one thing we have not touched on! and 9 will Eust mention it in passing. There has been a lot written about )ames *+hitey, &ulger and his standing in the &oston community. This may be a particularly &oston story. 0art of his story was the kind of good<brother! bad<brother thing. +hitey was the bad brother. 'is brother! &ill &ulger! was the Senate president and president of the 6niversity of 1assachusetts. 1B This story ignites people-s interests. &ut there was a time! and it was around the time
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. 2ynthia %. 4agen! *+hitey, &ulger 'id /uns! 2ash in 1akeshift Safes in $partment! N.C. 0DST H)uly 1N! "#11I! http:RRwww.nypost.comRpRnewsRnationalRholeTinTthe TwallTgangT5uvwm2nlSyl'G )bah&1mN. 1? ) -ee %ay /ustini! Whitey *!lger 5leads Not ,!ilty on 78 #!rder Charges! $T3$NT92 +9%G H)uly ?! "#11I! http:RRwww.theatlanticwire.comRnationalR"#11R#MRwhitey<bulger<pleads<not<guilty<17< murder<chargesR87?NNR. 1M ) 'amily of $lleged *!lger &i3tim -peaks O!t ! 2+ ?.2D1 H)une "8! "#11I! http:RRwww.cw ?.comRnewsRarticlesRlocalR1"##N? NN 8M88Rfamily<of<alleged< bulger<victim <speaks<outR. 1B . %ick Klein! (ale of (wo *rothers: Whitey and *illy *!lgers Rise to 5ower in Crime and 5oliti3s ! $&2NG+S./D.2D1 H)une "8! "#11I! http:RRabcnews.go.comR0oliticsR Eames<whitey<bulger<billy<bulger<powerful<brothers<powerfulRstoryOidU1871 B .

8" CRI#IN$L $N% CI&IL CON'INE#EN( @Aol. 8B:"B1 that he was being heavily investigated by us! that there was a little bit of a *%obin 'ood, aura about him. 9 thought at the time and 9 think more so now.that is cra(y. +hile everyone might not have known how violent he really was or known about the nineteen murders he was charged with in 1777! there is nothing glamorous about being a crime boss. Cet! there was a little bit of what 9 would call *acceptance!, both among people in the media and political people! of +hitey-s elevated standing. +e now know that some of that was pumped up by the 4&9 and )ohn 2onnolly! who protected him. 'ere are the final two things 9 want to say. There was a reaction to whether the victims- families would be allowed to speak at the detention hearing for 2atherine /rieg.17 The defense lawyers obEected to it."# The magistrate Eudge allowed it."1 This was a very good thing! that the victimsfamilies could have some role. &ail was never an issue for +hitey. "" 9-ve been out of the 6.S. $ttorney-s offices for ten years! and Tom-s description of the civil cases "8 makes me rethink a decision that 9 made! though probably there was no other choice. +hen the civil cases started to come in! 9 remember talking to 4red +yshak. 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 6.S. $ttorney-s Dffice! as people who would support them. +e could not be on the *other side!, even if it was a friendly *other side., 9 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 6nited States. 9 remember talking to the $ttorney /eneral saying we needed to recuse ourselves. 9 do not know that it was legally re;uired! but it was kind of messy. 9 did not want the 6.S. $ttorney-s Dffice here to have anything to do with the civil cases. &ut! hearing how that played out has given me some pause. 1aybe there was another way to do it. 1aybe if we had kept it within the office but had a wall so that 4red! &rian! and others wouldn-t be involved in the civil case! the outcome would have been different. There is some effort in 2ongress to pass a special bill

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) -ee 3aurel ). Sweet! Experts %i"ided on &i3tims 9in -peaking at ,reig /earing! &DS. 'G%$3D H)uly 18! "#11I! http:RRbostonherald.comRnewsRregionalRviewR"#11T#M18 e5pertsTdividedTonTvictimsTkinTspeakingTatTgreigThearing. "# ) 9in to (estify in #ass) on *!lger ,irlfriend *ail ! 4DV NG+S H)uly 1"! "#11I! http:RRwww.fo5news.comRusR"#11R#MR1"Rkin<to<testify<in<mass<on<bulger<girlfriend< bailR. "1 . David &oeri! *!lger &i3tims -peak of 5ain6 Loss at ,reigs :nd *ail /earing! +&6% H)uly 1N! "#11! ?: ? $1I! http:RRwww.wbur.orgR"#11R#MR1NRgreig<hearing< ". "" ) -ee Kevin 2ullen! E"er the Wiseg!y6 and -harp as a (a3k ! &DS. /3D&G )une " ! "#11! News! at B! a"aila4le at "#11 +3 1"??8"18. "8 . $udio 2D: Symposium! s!pra note 1.

"#1"L *+IL%IN, $ C$-E $,$IN-( .W/I(E01 88 for those families! to give them some compensation. "N 2learly! there is some 4&9 responsibility there. The final point 9 want to make is that long memories can be good sometimes. The core team of prosecutors.4red! &rian! and )amie.are still there. They are still working this case. 9t would have been difficult for a new prosecutor to come in and try this case from scratch. &y the way! 4red went down to 1iami and helped try the murder case against )ohn 2onnolly. 'e was designated as a special state prosecutor. There is so much history here! you could not Eust pick up the grand Eury 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 &oston is important. 9-ll be able to sit back and now watch this unfold. 9 can say this now that 9 am not in government: 9 believe there is sufficient evidence to convict him. 1y hope is that &ulger will never get out of prison. $nd that is a good thing.

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. Shelley 1urphy! 9erry -eeks ;<)=m for *!lger &i3tims 'amilies: -enate *ills (ied to #en $llegedly 9illed 4y ,angster ! &DS. /3D&G HNov. 1! "#11I! http:RRwww.bostonglobe.comRmetro."#11R11R#1Rkerry<seeks<for<bulger<victims<familiesR4k; NEa/DNKB6f1PeD9&i(1Rstory.html.