Whitey Bulger America's Most Wanted Gangster and the Manhunt That Brought Him To Justice (47 page)

Stern said that the government should have acknowledged that its handling of Whitey and Flemmi had gone horrendously wrong. “The government should have accepted responsibility for what happened, the corruption in law enforcement. Instead they ended up handling and trying the cases in a way that fed into the perception that there’s more of the same.” He further added, “You had the appearance of once again the FBI being protected. I don’t think it was the intent, but that’s how it played out.”

The Justice Department had been offered an honorable way out of the mess. In 2002, federal judge Reginald Lindsay suggested that the government create a victims’ compensation fund to settle the suits. “I’d like to see all these cases settled,” Lindsay told Justice Department lawyers during a hearing on the suit filed by Michael Donahue’s family. Lindsay offered as examples the funds created to pay the victims of the September 11 attacks and the victims of sexual abuse by priests in the Archdiocese of Boston. The judge’s idea drew widespread political support. William Delahunt, a congressman whom Whitey Bulger had once smeared, with John Connolly’s connivance, in various informant reports, was among those who approved of the idea of the Justice Department’s settling all of the cases—which sought damages ranging from $15 million to $860 million—and compensating the victims. Delahunt said that the DOJ was “denigrating the American justice system” by arguing in a criminal court that John Connolly and the FBI got people killed, and then arguing in civil court that the FBI was blameless. But despite Lindsay’s push, the Justice Department would not negotiate with lawyers for the families. They insisted on fighting it out in court for fear of allowing the Boston cases to set a precedent, leaving the government open to all sorts of claims for compensation.

Only seven cases ever made it to trial; the Donahues’ was one of them. Lindsay ruled that the FBI was responsible for Michael Donahue’s murder and urged Justice Department lawyers to settle with his family. But at each turn, the government refused and insisted on litigating the case. Michael Donahue stood out—with Debra Davis, Roger Wheeler, and Deborah Hussey—as being a sympathetic victim. He was killed only because he gave Brian Halloran a ride home. He had never posed a threat to Whitey. He was a victim of other people’s circumstances.
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But his family was repeatedly dragged through a process that more than one federal judge decried as unnecessary. In its determination not to weaken the case law that favored the government, the Justice Department made no distinctions among victims. Rather than settle with the Donahues, the government spent millions on ten years of litigation, flying Justice Department lawyers up from Washington and putting them up at four-star hotels in Boston for weeks on end. The government even refused to stipulate certain obvious facts, such as the autopsy findings. “I got the impression that they wanted us to listen to how my father died, in all its gory detail, again and again, so we’d just throw our hands up and say, ‘We don’t want to do this,’” Tommy Donahue said.

The low point for the Donahues came during a hearing in 2008, when a Justice Department lawyer suggested that Pat Donahue had moved her three sons to a Boston suburb out of racial animus—that she was fearful of blacks who were moving into their Dorchester neighborhood as the city’s ethnic geography evolved. Pat Donahue was shocked by the accusation. She turned instinctively toward Judge Lindsay, who was black and had grown up in the Jim Crow South.

“They were trying to paint me as a racist in front of Judge Lindsay and I was almost speechless,” Pat Donahue said later. “I’m not prejudiced. I moved the boys from Roseland Street to start over, because their father had been murdered.” The Donahue boys, in the gallery watching their mother on the witness stand, struggled to control themselves. It was true that the Donahues had moved out of the neighborhood as it was becoming more integrated, but race wasn’t the reason. With Michael dead, Pat Donahue couldn’t afford the house anymore. It was equally true that the Donahues had in more recent years moved back into a section of Dorchester where they were one of the few white families on the block. They occupied all three floors of a three-decker, and many of their neighbors and friends were black and Asian. One of Tommy’s teammates on his darts team at the local pub was black and lived in the neighborhood. Given the racial history of the city, accusing a white, working-class Irish Catholic family in Boston of being racist was incendiary. The Donahues were embarrassed that they had to defend themselves. “They don’t know a thing about us, and they played the race card in front of Judge Lindsay,” Tommy Donahue said. “I don’t know how much lower you can get.’’

In an open rebuke of his own Justice Department colleagues, prosecutor Fred Wyshak sat in back of the Donahues in the courtroom to show them support. He was joined by DEA agent Dan Doherty and Massachusetts State Police detective Steve Johnson. They were part of the team that defied the FBI to bring criminal charges against, and expose the FBI’s protection of, Whitey and Flemmi. After the Justice Department tried to portray the Donahues as racists, Wyshak, Doherty, and Johnson approached Pat Donahue and told her that they were embarrassed by the government’s tactics. After his mother testified, Tommy Donahue took the stand. He broke down in tears explaining what it was like to grow up without a father, and what his father’s murder had done to his family. A Justice Department lawyer asked him how much his father had earned as a truck driver before he died. “I have no idea,” Tommy Donahue said. “I was an eight-year-old boy.”

In 2006, the family of John McIntyre,
murdered by Whitey in 1984 after the failed
Valhalla
gunrunning mission Whitey had helped organize, was the first of the victims to get its case to trial. Judge Lindsay had initially thrown out the McIntyre claim, saying it was filed too late. But after an appeals court overturned his ruling, he heard the case.

Lindsay was visibly upset by some of the Justice Department tactics. John McIntyre’s mother, Emily, was German-born. She had married a US intelligence officer and had come to the United States in 1954. Seventy-seven years old in June 2006, she seemed beaten down even before she sat down in the witness box. Her son’s disappearance haunted her; the authorities had told her nothing. In the absence of any real information, a lawyer looking to write a book fed her a wild conspiracy theory: that John McIntyre had been killed by British intelligence agents in a bid to protect a mole inside the IRA. She was willing to believe it because the government had never bothered to tell Emily McIntyre the truth—that her son had been tortured and killed by Whitey Bulger. The pain was still vivid for her; it might have been an appropriate time to apologize or at least offer a kind word. Justice Department lawyer Bridget Bailey Lipscomb at first appeared to recognize the sensitivities involved. Earlier testimony had centered on how, after Whitey shot John McIntyre in the head, Flemmi removed McIntyre’s tongue. “I know it’s been a tough week for you, reliving some bad memories,” Lipscomb began. “I need to ask you some difficult questions, and I hope you understand that.”

But no one understood where Lipscomb was going when she asked Emily McIntyre if her son had liked to read books about Adolf Hitler, a comment evidently on his German heritage. Judge Lindsay was appalled by the question and told Emily McIntyre she didn’t have to answer it. Under Lindsay’s orders, Lipscomb stayed away from that baffling and insulting line of inquiry. Instead she asked Emily McIntyre how much time she had spent with her son and whether schizophrenia ran in the family—questions aimed at Emily McIntyre’s effort to collect damages for the loss of her son’s companionship and his potential future earnings. McIntyre turned on the lawyer, speaking for many victims. “You should have questioned how my son was tortured,” she said, shaking with emotion and rage. Lipscomb said that she was only doing her job. “No,” Emily McIntyre corrected her. “Your job is justice.” Emily McIntyre took a deep breath before delivering her withering assessment. “Your type of justice,” she told the government lawyer, “destroyed my life.”
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McIntyre’s trial marked the first time that Steve Flemmi had testified publicly since he had pled guilty to ten murders. Taking the stand just a few days before his seventy-second birthday, he looked deceptively meek, with his graying dark hair—a boy’s regular cut—and slight build. In a soft, casual voice, he recounted how he and Whitey murdered not only McIntyre but many others. He said they killed McIntyre because John Connolly had warned them he was cooperating with the law. He described Connolly as someone who “treated me like an equal” and estimated that he and Whitey had paid their handler about $250,000 between 1975 and 1990. He said they also gave cash payoffs ranging from $2,500 to $5,000 to five other agents during the 1980s. Lindsay awarded $3.1 million to John McIntyre’s mother and brother, rejecting the government’s contention that Connolly was a rogue agent. The judge found that Connolly’s superiors “up the chain of command” approved of using Whitey and Flemmi as informants, even knowing that they were suspected of murders, drug trafficking, and other crimes.

The judge chastised the government lawyers for withholding evidence in a bid to get the case dismissed.
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Lipscomb repeatedly argued that the McIntyre suit should be dismissed because there was no evidence that John Connolly did anything to cause McIntyre’s death. But on the eve of the civil trial, at Fred Wyshak’s insistence, she gave the trial judge a report showing that Flemmi had told investigators in 2003 that he and Whitey killed McIntyre because Connolly warned them he was cooperating against them. Wyshak, the prosecutor who helped build the murder case against Whitey and Flemmi, was incredulous that his counterparts in the civil branch of the Justice Department took the position that they weren’t required to turn over the document. A magistrate judge found that the government’s civil lawyers withheld evidence while acting in bad faith and were obligated to pay the McIntyre family’s legal costs. The Justice Department finally agreed in late 2011 to pay McIntyre’s mother an additional $700,000 in legal fees, but only if the court would vacate the rulings finding that the government had acted in bad faith. Justice Lindsay died before he could issue a final ruling on legal fees, but Judge William Young, who adopted the case, refused to go along with the Justice Department’s caveat. He denounced the Justice Department for suppressing the truth. “I will not be part of it,” Young told a Justice Department attorney.
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“This is duplicity pure and simple.” The government dropped its appeal and paid the McIntyre family. The money helped but could not erase the image Emily McIntyre carried in her head of her dead and mutilated son.
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Judge Lindsay had also found overwhelming evidence that the government was liable for the killings of Donahue and Halloran. He held a bench trial on the agonizing question of how much the two men’s lives were worth. Lindsay’s death came before the final enumeration of damages. Those cases were also taken over by Judge Young, and in 2009, he awarded the Donahues $6.3 million and Halloran’s widow $2 million. Young acknowledged that Halloran was a criminal, but he said he was murdered while trying to turn in the FBI informant who killed him. “It is next to inconceivable that our government, through negligence, inattention, self-interested hubris, and outright corruption, could cause, as Judge Lindsay has already found, the truly horrific murder of two of our citizens,” Young said from the bench.

Young gave the Donahues more than money; he gave the family their good name back. “This was a happy, vibrant family,” Young said, as Pat Donahue sat ten yards away, nodding. “Its social relationships were measured not by money but by faith, by mutual support, by the sharing of life together in the finest family tradition.” Michael Donahue was “an extraordinary caregiver in every sense of the word. . . . Here there is overwhelming evidence of a family destroyed. That’s unfair to them. They weren’t destroyed. They went on. They made a life. The sons have grown up to honorable manhood. But the loss of the father, this father, in those circumstances, is, in this court’s eyes, and I so find, compelling.”

A few hours after Judge Young spoke, the Donahues walked through Cedar Grove Cemetery. It was May, springtime in Boston. They walked to the grave and Tommy Donahue looked down. “It’s over, Dad,” he said. “It’s over.”
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But it wasn’t. The Justice Department had sixty days to file an appeal, and on the fifty-fifth day it did. Again the argument was that the Donahues had waited too long to bring their suit. Two district court judges had rejected the government’s argument, but two judges on the First Circuit Court of Appeals agreed and threw out the award to the Donahues. Judges Bruce Selya and Jeffrey Howard said that they sided with the government “without endorsing the FBI’s conduct, which we regard as reprehensible.” They said information about the FBI getting Michael Donahue killed had been discussed at the Wolf hearings. They suggested that the Donahues should have read the newspaper accounts a little more closely. “Whether the plaintiffs knew the information is not the issue,” Selya and Howard wrote. “Statutes of limitations are designed to operate mechanically. They aspire to bring a sense of finality to events that occurred in the distant past and to afford defendants the comfort of knowing that stale claims cannot be pursued.”
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But in a ringing dissent, the third jurist on the appeals court panel, Judge Juan Torruella, said that the FBI and the Justice Department deserved no comfort. The family, Torruella argued, couldn’t be expected to know, or even believe, the information that was emerging at Wolf’s hearings. Their government had lied to them for years. Every time Pat Donahue asked the FBI for information on her husband’s murder, she was stonewalled. “Not content with mere stonewalling, at one point FBI agents accused her of having an affair, which the agents suggested was the cause of the murder,” Torruella wrote in his minority opinion. Summoning the moral indignation that his colleagues lacked, Torruella refused to go along with “such an unjust outcome which rewards official uncontrolled wickedness.”
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