by Dick Lehr
So for the time being Cardinale held back, partly out of caution and partly out of courtesy to his colleague, Ken Fishman, who was representing Flemmi. Besides, at the time the conventional wisdom still held that Flemmi was a stand-up guy. “The word on the street was about Bulger,” noted Cardinale. The Globe stories a decade before had been about Bulger and the FBI, not Flemmi. Bulger was the one who had evaded arrest in 1995, not Stevie. “You know, nobody had ever really said anything about Flemmi. Even among the Italians, I mean they always said, ‘Listen, Bulger is capable of anything,’ but Flemmi, they considered him almost one of them.”
Every step of the way Fred Wyshak and his fellow prosecutors fought Cardinale. They didn’t know exactly what horrors were hidden inside the FBI’s files, and they wanted Judge Wolf to keep his eye solely on the prosecution at hand. Wyshak had gone so far as to share with the judge—but not with the defense—an “extremely confidential” affidavit by Paul Coffey, the chief of the Organized Crime and Racketeering Section of the Justice Department. In it Coffey reported that as informants Bulger and Flemmi were never given specific authorization to commit crimes and that both were given periodic warnings that they were “not authorized to commit any criminal act absent specific authorization.” Ironically, Wyshak was forced to defend the FBI deal with Bulger for the sake of stopping Cardinale. The government, Wyshak insisted, did not have any formal but undisclosed deals with Bulger or Flemmi that would bar the present prosecution. The judge, argued Wyshak, should therefore ignore Cardinale’s “sweeping and nonspecific allegations.” Bulger and his relationship with the FBI was irrelevant, a distraction. Just as important, the court should not put the FBI in the harmful position of having to confirm or deny in public the names of the confidential informants so crucial to the bureau’s work.
But Wolf did not agree.
To the government’s dismay, on April 14, 1997, the judge decided that he wanted to learn more about Cardinale’s claims, at another closed hearing to start in two days. “The court has reviewed the defendant’s Motion to Disclose Confidential Informants and Suppress Electronic Surveillance conducted in this case,” wrote Wolf in a quick three-page ruling. “In this case, in which the defendants are charged, among other things with . . . conducting a racketeering enterprise, the fact that a codefendant was during the relevant period a confidential informant for the FBI would, if true, constitute exculpatory information to which his codefendants are entitled.” Wolf even ordered the government to bring along Paul Coffey and said that Coffey should be ready to talk about informants.
Between the lines in the ruling, Cardinale thought he detected a hint that his aggressive inquiry should not stop at Bulger but embrace Flemmi as well. “He says he wants the government to be prepared to answer questions as to whether ‘a’ defendant in the case—what impact that has if ‘a’ defendant is an informant. Now what happens is, I read from that that the judge, he was indicating that it is a defendant who is actually presently in the courtroom, not one who is on the lam, as Bulger was.”
The night before the hearing the lawyer shared this latest theory with his colleagues in a meeting at Ken Fishman’s office. There was John Mitchell, a New York City attorney who had joined Cardinale in representing Salemme and DeLuca, along with attorneys representing John and James Martorano. The half-dozen men and women were gathered around a conference table in the office on Long Wharf in a building that was rustic waterfront—restored red brick and exposed wood beams—next door to the New England Aquarium. Cardinale couldn’t even get through explaining his hunch when the other attorneys nearly hooted him out of the room. Mitchell looked at his pal and told him, quit being an asshole. Ken Fishman rolled a piece of paper up into a ball and tossed it at his former partner. No one had ever really talked about Flemmi as being part of the rat pack.
“Everybody had this sense that this guy was different than Bulger. He had been caught, and he was sitting in jail, and he was part of this ‘all for one and one for all’ defense effort,” said Cardinale. “I was convinced otherwise.”
During the meeting Cardinale did not even know if Fishman and his client had ever discussed Flemmi’s secret double life with the FBI. In fact Fishman was flummoxed hearing Cardinale say he was planning to go after Flemmi. “I don’t know that I have reacted so dramatically to anything Tony has ever said in the last twenty years,” Fishman said. The other lawyers insisted that Cardinale was misreading the judge and was way out of line.
But Cardinale wanted to prepare them for the possibility he was correct. He told the lawyers he’d already explained his plan to his clients, going over the underlying risk to this roll of the dice: if true, Flemmi might flip and turn against the other defendants in the case. For his own client, Frank Salemme, the potential exposure was limited. “Frank had been in jail for most of the Bulger-Flemmi reign, so Flemmi couldn’t give up much as far as Frank was concerned.” For the others, however, the risk was real.
The next morning the defense lawyers, their clients, and the prosecuting team led by Wyshak and Paul Coffey of the Justice Department all assembled behind the closed doors of Judge Wolf ’s courtroom number 5 in the federal courthouse in Post Office Square. “We’re here pursuant to my April 14 order, which is under seal,” said Wolf from the bench, getting right into it. “I will say that I’ve closed the courtroom to the public because the matters that we will be discussing will relate to the disclosure to defendants and possible public disclosure of confidential informants.”
The judge reviewed Cardinale’s motion, mentioning the names Cardinale had included—Bulger, Kenny Guarino, Anthony St. Laurent, and two other underworld figures. The judge paused and looked up from the paperwork.
Then came the question Cardinale had been waiting for.
“Are the defendants interested in knowing about other individuals who might be similarly situated, if those people are indeed confidential informants? Or is it just those five?”
There was silence; all the dark matter that defined the world of Bulger and Flemmi as FBI informants was about to begin to ooze out, like toxic waste that had finally eaten its way through containers meant to seal the poison forever.
“It was a weird moment,” recalled Cardinale. The judge, he said, had “a kind of smile on his face. I knew then that my hunch was not just a hunch.” Cardinale walked over to his clients, Salemme and DeLuca. The lawyer knew there was no turning back. “I said, ‘Listen, we’re taking this step now. It could have some very negative impact. This guy could roll.’ But their position was, ‘Hey, Flemmi can’t say anything about me. He’d have to lie, so go on. Do it.’”
Cardinale turned and faced the front of the courtroom. The judge’s question was pending: is it just those five?
“As the old saying goes,” Cardinale said, “in for a penny, in for a pound, Judge. If there’s more, so be it.”
“That means you want it?” the judge asked.
“Yes.”
MINUTES after Cardinale’s reply, Wolf retired to his chambers. He ordered Paul Coffey of the Justice Department to come along with him. During the brief recess the judge and the Justice Department official discussed the crossroads the case had reached. Coffey told the judge that “our relationship,” meaning the FBI’s, was not just with Bulger but included Flemmi too. That was the point, the judge replied. If the judge was going to allow the defense to explore whether any of the evidence was poisoned by the FBI’s ties to Bulger, then Flemmi had to be part of that. It made no sense otherwise. (Wolf would later write that the two were “virtual Siamese twins.”) Both acknowledged that Flemmi, seated in court, did not seem to realize what was about to occur.
The judge left his chambers and returned to the courtroom, where the lawyers and the defendants had simply sat, waiting. Wyshak and his team tried again to stop Wolf from going any further, insisting that the informant angle Cardinale was pushing was no more than a red herring. Cardinale protested. Wolf called a halt to the debate. “Unless the government objects, I�
�d like to see Mr. Fishman and Mr. Flemmi in the lobby,” the judge decided.
“There’s something that’s come to my attention that’s negative about you,” Wolf said to Flemmi as soon as he, Flemmi, and Fishman had sat down in the private chambers. “I’m going to encourage you to think about it.”
“That’s fine,” said the ever-casual Flemmi. No sweat.
Judge Wolf asked Fishman to leave the room. Then he told Flemmi he would have preferred to have Fishman present for their chat, but he didn’t know how much information Flemmi had shared with his attorney about his past. Out of caution, the judge said, it was better to talk alone first.
“I just want you to listen to this,” Wolf said.
The judge reviewed Cardinale’s motion to Flemmi—how Cardinale wanted certain FBI informants identified as part of an effort to challenge the admissibility of the prosecution’s case against Frank Salemme and the others. Wolf told Flemmi that, as part of that process, he’d received documents informing him that Bulger—and Flemmi—were indeed informants. Wolf said he was inclined to rule in Cardinale’s favor and permit discovery of FBI informant names. In short, the judge was going to require that the FBI disclose publicly its work with Bulger and Flemmi.
“Do you feel comfortable about what we’re going to do with this?” Wolf asked after he’d finished his lecture. “Do you feel fear or anything?”
“No. I’m comfortable about my safety,” said Flemmi. “I’m not concerned about it at all.” But inside Flemmi had to be churning, bewildered by this turn of events. Ever since his arrest in early 1995, he’d kept quiet about his secret life with the FBI. He’d viewed his arrest as a mistake, or maybe somehow necessary as a cover to conceal his ties to the FBI, but a charade that would eventually be resolved quickly by Bulger and their friends at the FBI. “I believed that James Bulger would contact the people that would be able to help us because we were involved with the FBI for so many years,” Flemmi said later. He was quietly biding his time, remembering that years before, in the 1960s, it had taken Paul Rico and the FBI nearly four years to clean up the murder and bombing charges against him and pave the way for his return from Canada.
Flemmi also realized that the real reason Wyshak was fighting Cardinale about the disclosure of informant identities was not out of any love for him. Wyshak was trying to keep the case clean and straightforward and prevent Cardinale from knocking out any evidence. But now the judge was telling him that the fact he was an FBI informant was likely to come out; after all the history between him and Bulger and the FBI, Flemmi felt betrayed. He wasn’t alone. Bulger sidekick Kevin Weeks had been serving as a messenger between Flemmi and Connolly, paying Flemmi regular visits in prison. “The information I received from Kevin Weeks from John Connolly was that he was very upset about the situation that Jim Bulger and I were in,” Flemmi said.
What about Ken Fishman, Wolf asked. Does your lawyer know about any of this?
“I’ll tell him right now,” Flemmi answered. “I don’t have a problem with that.”
“Can I bring him in and do that?”
“Absolutely.”
Flemmi, seeming to grow bouncy, complimented Wolf, offering the judge a wiseguy pat on the back. “Your honor, you’re getting to the core of the matter. There’s no doubt about that. You’re right there. If you go a little further, you could get the whole complete story.”
Fishman returned, and the judge summarized Flemmi’s past, explaining that he’d been given government materials saying Flemmi had been an informant “for many, many years.” Paul Coffey of the Justice Department soon returned, saying, “If the court will let me, I’d like to talk to him.”
Coffey turned to Flemmi and Fishman. “I’d like an opportunity to sit down with both of you someplace and tell you what I think needs to be done.”
“Great,” Fishman replied sarcastically. The lawyer was doing his best to keep up appearances. The disclosure was like a sharp jab that had left him stunned, and even though he’d been around long enough not to reveal how shaken he was, his head was swimming. “After twenty-two years as a criminal defense attorney, you have a visceral reaction, a certain inherent distaste for an individual who has chosen to serve as an informant,” he said.
The lawyer also knew exactly what angle Coffey was working—exploit the shock of the moment, quickly persuade a “back on his heels” Flemmi to enter the witness protection program, and testify on behalf of the government against the others.
Coffey went ahead and made his pitch. Flemmi curtly said no. “If I was so valuable to you, what am I doing here?” Fishman was trying to shake loose of his own confused feelings. He wanted time alone with his client. He needed to figure out what to do, and he was soon already thinking about a plan that would turn the “negative information” into a positive. Because the government, Fishman could argue, had “authorized” Flemmi and Bulger to commit crimes in a trade for their underworld intelligence, the mobsters could not now stand trial for crimes they were given permission to commit.
It would become known as the “informant defense,” and to support his claim Flemmi soon began filing sworn affidavits describing his life with the FBI and the promises he said FBI agents had made to never prosecute him and Bulger.
ON May 22, culminating the months of closed hearings and the legal papers filed under seal, Judge Wolf granted Cardinale’s wish for an open, evidentiary hearing. In a forty-nine-page ruling, Wolf said the purpose of the discovery hearing would be to allow Cardinale and other defense attorneys to question FBI agents and officials about the bureau’s relationship with Bulger and Flemmi so that he could decide whether tapes and other evidence should be suppressed. To that end, the judge said he had decided he had to order the Justice Department to disclose publicly whether Bulger, Flemmi, and the other names included in Cardinale’s original motion had been in fact “secretly providing information to the government.”
The government, noted Wolf, did have other options if it did not want to comply with his order. He acknowledged that his ruling undercut the “generally recognized interest of the government in maximizing the confidentiality of its informants in order to encourage the flow of information from informants.” He said that at times the government “elects to dismiss a case rather than confirm or deny the existence of a cooperating individual.” But, concluded Wolf, if the government wanted to continue against the Mafia and the Bulger gang, it would have to share its secrets.
Wyshak urged Wolf to reconsider, but the judge said no.
Despite the ruling, this team of prosecutors was not about to drop the case. There was no turning back. The Justice Department therefore decided to go ahead and do what no federal official in Boston had ever done: on June 3, 1997, more than two decades after John Connolly first approached Whitey, it confirmed for the court Bulger’s role as a longtime FBI informant.
Paul Coffey uttered the magic words: “I, Paul E. Coffey, being duly sworn, depose and say, that pursuant to this Court’s Order of May 22, 1997, I hereby confirm that James J. Bulger was an informant for the Boston Division of the Federal Bureau of Investigation (FBI).” For now, wrote Coffey, the government was only going to name Bulger, and he explained why, in Bulger’s instance, the decision was made to break from the strict practice of protecting the confidentiality of informants. Bulger, he wrote, “is accused of leading a criminal enterprise which committed serious violent crimes continuously over many years.” It was a crime spree, wrote Coffey, that overlapped with his work as an FBI informant. Moreover, Bulger, as a fugitive, was now trying to escape responsibility for his many alleged crimes. These factors combined to create “unique and rare circumstances,” wrote Coffey, which allowed for outing Bulger in order to put him behind bars. “Bulger has forfeited any reasonable expectation that his previous informant status will remain confidential.”
The Justice Department obeyed the court order knowing full well that to do so meant allowing Judge Wolf to enter a no-man’s-land. The FBI’s Bulger files were
a place where no independent body—such as a federal court—had ever gone before. None of the prosecutors—nor, for that matter, the defense attorneys—knew the extent of that corruption, but they all had a strong sense that opening up the FBI files would get ugly. Paul Coffey had said as much to the judge as the two men were discussing Cardinale’s demands about Bulger and Flemmi: “We see this as a time bomb.”
That bomb, after so many years, was about to go off.
CHAPTER TWENTY
The Party’s Over
On a rainy winter morning in Boston, January 6, 1998, the judicial excavation into the FBI’s ties to Bulger and Flemmi finally began. “We’re here today,” the judge announced formally in courtroom number 5 in U.S. District Court, to begin “hearings on the motions to suppress certain electronic surveillance and Mr. Flemmi’s motion to dismiss based on alleged promises that were made to him.”
The lawyers, standing, introduced themselves: Fred Wyshak, Brian Kelly, and Jamie Herbert for the government; Tony Cardinale, Ken Fishman, Martin Weinberg, and Randolph Gioia for the four mobsters. Off to the left side, under the watchful eye of federal marshals, sat the accused: first Frank Salemme, dressed in a gray, double-breasted suit and red tie; then Bobby DeLuca; Stevie Flemmi; and finally, to the left of Flemmi, hitman Johnny Martorano. They sat in silence. No one—not the mobsters, not the lawyers, not the judge, and none of the television, radio, and newspaper reporters who filled the benches in back—had any idea what was to come. Never before had the matter of the Boston FBI, Whitey Bulger, and Stevie Flemmi been the grist of open federal court proceedings.