30

BOSTON, 2006

Spring was stepping into summer the day I boarded the Amtrak train for Boston. Once at Boston’s South Station, I hustled on this historic day to Fan Pier’s U.S. District Court overlooking Boston Harbor for a momentous day in the beginning of testimony at John McIntyre’s “estate” trial that would decide a legal battle between the government representing the FBI and the family of McIntyre mourning his murder.

Courtroom 2, a usually sparsely attended courtroom, was packed to the gills with all sorts of people. Attorneys both in and out of the case were there, as was the media representing print and TV reporters. The families of the victims, including the McIntyre family, were in attendance, along with former FBI and other law enforcement officials and a plethora of individuals wanting to see history in the making.

Just as I arrived the bailiff announced, “Hear ye, hear ye, all rise!” as the judge entered in his wheelchair from his chambers to take his high seat among the gallery. It was 9:17 a.m. and the bailiff wasted no time in calling “Robert Fitzpatrick” to the stand. My heart was pounding as I walked up the aisle, took my place in the “testimonial box” and recited “I do!” to telling the truth, the whole truth, and nothing but the truth.…

Those in attendance were probably unaware of how flushed and nervous I was in the courtroom. I recognized a few faces in the gallery, but before I knew it, the trial had begun. The plaintiff’s attorney, Steven Gordon, began by reviewing my FBI background and experience to establish my credibility and expertise. It was midday before he got around to the subject at hand.

THE FIRST DAY, JUNE 12, 2006

“And as a result of that background and experience, did you undertake specific work at the FBI in that area?” Gordon asked me.

“At the Academy I was assigned to the behavioral science unit. My job was primarily an area developing programs: homicide, sex crimes, profiling, hostage negotiation, terrorism, mostly the psychological application of that program.”

“And as part of that training, how many hours of specific training in that area would you say you have within the Academy?”

“Hours?” I asked him back. “It was years, three years. I traveled throughout the country and the world, traveled about half the year teaching classes, giving instruction, and visiting crime sites.”

“And would part of this training and experience be an ability to work with particular informants to assess their credibility?” Gordon followed immediately.

“Yes, yes. I taught a course, the psychology of informants and the psychology of all kinds of crime regarding informants. What we were doing was giving attendees an opportunity to understand the psychology of informants, which is, well, among other things, that they go both ways.”

“What do you mean by both ways?”

“Well, some informants tell the truth and some don’t.”

“Would you train other agents how to identify factors to determine whether an informant was being truthful?”

“Yes.”

“And did you lecture or train with regard to informants having to do with organized crime?”

“Yes.”

“And did that pose any special issues for you or for the FBI?”

“Yes. It’s a higher echelon informant.”

“Mr. Fitzpatrick,” Gordon started next, leaning forward as if he was coming to an important point. He looked down at the pages before him. “If you go down to the third paragraph, ‘While the FBI recognizes the LCN as not being the only organized criminal element, it is nonetheless dominant and therefore continues to receive the prime investigative emphasis within the overall FBI organized crime program.’ Do you see that?”

“Yes, I do.”

“In the prosecution of LCN, what role did informants play in the C-3 [Organized Crime] squad?”

“Well, most of the informants are at least members of the organized crime syndicate, gang, whatever, and as such they are inside and able to afford information that we would normally not get.”

“And would you describe that use of informants as being critical to the infiltration of LCN?”

“Most definitely.”

“And would you consider critical the use of informants in the prosecution of LCN?”

“Most definitely.”

“And you indicated also as part of your testimony that informants at times can ‘go both ways.’ Do you remember that?”

“This is true.”

“And that there’s a need to control informants so that they don’t go both ways, correct?”

“True.”

“And there is a danger if informants turn against the FBI?”

“True.”

“And why so?”

Gordon had finally gotten to the heart of the matter. I weighed my next words carefully, knowing they would set up much of my remaining testimony over the ensuing days.

“Well, because they’re privy to a lot of information that they’re not just targeting but probably getting some information about what the FBI is up to, and they could telegraph that information or use it themselves.”

“And so informants as part of their handling at times are given information about what the FBI is doing?”

“About a target, about a person, sure.”

“And, therefore, as part of your job responsibilities, you want to do the best you can to make sure that informant does not misuse that information?”

“True.”

“And the way an informant could misuse that information is notifying a target of the investigation that they’re actually being targeted?”

“True.”

“And it can be misused that an informant can learn who is cooperating with the FBI?”

“This is true.”

“You know there’s a risk that informants can misuse that information by harming other people who are providing confidential information?”

“It’s a great risk, yes.”

“And as a consequence of the difficulties in controlling informants the attorney general issued certain guidelines, correct?”

“True.”

“And the FBI wanted, as far as you understood by the guidelines,” Gordon picked up, citing the FBI manual, “wanted to make sure that they were using ‘suitable’ informants?”

“Well, that the informants were suitable to the task, yes.”

“And do you see where it instructs if an informant is unproductive, unsuitable, or is not providing pertinent information, he/she must be closed? Do you see that?”

“Yes, I do.”

“And was that your understanding that once an informant became unsuitable that informant should be closed?”

“That’s right.”

“And it indicates that if there is a serious act of violence committed by one of these informants connected with or unconnected with his assignment, then Washington needs to be notified.”

“That’s correct.”

“And do you see the line where it states it is proper for the FBI to use informants and confidential sources in appropriate investigations but special care must be taken to carefully evaluate and closely supervise their use. Do you see that?”

“Yes, I do.”

“And what did you understand ‘special care’ to mean?”

“That they, the FBI, follow the guidelines.”

“And that an agent, because of the dangers in using informants, must pay special care not to violate the guidelines, correct?”

“If you’re working organized crime, you work organized crime to the extent that you’re going to prosecute those cases in organized crime. The special care involved would be that you adhere to the guidelines. That, in other words, you do what you’re supposed to do.”

“And it goes on to state that you’re required, a special agent is required to ensure that individual rights are not infringed and that the government itself does not become a violator of the law. What did you understand that phrase to mean?”

“Well, that you adhere to the law and you adhere to the guidelines and you do what is correct and true.”

“And the introduction goes on to state that ‘though informants and confidential sources are not employees of the FBI, their relationship to the FBI can impose a special responsibility upon the FBI.’ What did you understand the term ‘special responsibility’ to mean?”

“Sensitivity. Also confidentiality, and probably the term used before, suitability.”

“Now, when you indicated that in adhering to the guidelines confidentiality was an important factor. What did you mean by that?”

“As we discussed before, it ensures the safety of the informant. It protects the information which will be used in prosecution, and it also is incumbent upon the agent to adhere to the guidelines in this regard.”

“So that the agent does not begin to provide information to the informant that he should not.”

“Well, we call that going native,” I said, picturing John Connolly. I tried to see him as the cocky, insolent FBI agent he had been, but the only image I could conjure was of the prisoner now living in a tiny cell.

“What does ‘going native’ mean?”

“An agent who would perhaps become friends with the informant and not be as objective as he should be, and would then perhaps directly or indirectly be sharing information that they shouldn’t.”

“And was ‘going native’ a known risk within the office?”

“It’s part of what I taught at the Academy. I would set up situations where the agents would ‘go native’ and identify or overidentify, compensate or overcompensate with the informants and do things that they shouldn’t do. Compromise the investigation, compromise themselves, compromise the informant, and so on.”

“Was it your understanding that any time the FBI learns an approved informant or confidential source is no longer suitable to provide information or operational assistance, his relationship with the Bureau shall be promptly terminated?”

“True.”

“So if an informant was found or believed to be untrustworthy, [he] should be closed?”

I immediately recalled my many attempts to close Bulger. They all flashed before me in that moment, along with how the FBI had done everything it could to make sure that never happened.

“He would,” I said, “probably by the agent himself.”

“And if there was information that came to you that an informant was engaged in criminal activity that was not authorized, what was your understanding as to what an agent was to do?”

“Generally speaking, he would report it, it would be written up, and probably sent to headquarters.”

“And if there was information that an informant was engaged in extortion, would that be information that should be forwarded to Washington?”

“Extortion would be something that would definitely be regarded as closable.”

Mr. Gordon spent most of the day introducing my experience and expertise in being able to run an office of the FBI, especially in the area of priority cases like LCN and mafia-related violations. He honed in on informant rules and regulations and the need to pay attention to these rules and regulations, so that the informants receive proper guidance and instruction. Gordon made a case that the Boston FBI’s informants had run amok, even though warned by me of the danger involved in not adhering to FBI guidelines. Those guidelines had been ignored along with my protestations.

The day ended around issues that suggested the FBI should have closed Bulger, as I had advocated, or any informant who was breaking the rules or not adhering to the guidelines.

The atmosphere had been electric throughout the opening day. The gallery was pinned to their seats. A poignant moment came when Mrs. McIntyre began to cry again, causing the judge to intervene. Reginald Lindsay’s compassion added a kind touch to the otherwise brutal depiction of her son’s execution at the hands of Whitey Bulger.

The second day of trial played to another standing-room-only gallery, and when the bailiff called my name I rose to the challenge of trying to make sense of the muddle that defined the entire Bulger era for the court.

THE SECOND DAY, JUNE 13, 2006

“Could you explain to the Court what a Top Echelon informant is?” Steven Gordon began.

“Well, a TE, a Top Echelon informant, is usually associated with organized crime. And the informant is an informant who provides very sensitive—highly sensitive, highly confidential—information about the entity, LCN entity, about associates, and about any other strategy, plans on the part of these individuals.”

“And in the ranking of informants as being the most sensitive, where would Top Echelon informants be?”

“To the best of my recollection the highest level.”

“And the reason for that is that a Top Echelon informant is providing information about managerial decisions being made by LCN?”

“This is true.”

“And the Top Echelon informant, the TE, would actually be sitting in or could be sitting in with the board of directors of organized crime?”

“True.”

“And the TE would be in a position to gain the information that he learned at those meetings and provide that to agents of the FBI?”

“True.”

“And Bulger was a Top Echelon informant?”

“Yes, he was.”

Gordon stopped there and stared across the courtroom toward me in the examination box. I could feel Judge Lindsay leaning forward a bit, as if sensing a crucial point was coming. My anxiety was palpable, my heart beating so hard and fast I thought the judge might be about to ask me if I was all right as he had for John McIntyre’s mother on numerous occasions.

“Mr. Fitzpatrick, was Mr. Bulger kept open as an informant?”

“To the best of my knowledge, yes.”

“And when you went to Boston, Mr. Sarhatt sat down with you?”

“Right. Mr. McKinnon told me I was walking into a buzz saw.”

“And did you ask him what the buzz saw was?”

“You don’t ask the assistant director of the FBI what the buzz saw is.”

“You just walk?”

“I just listened.”

“And then when you got to the Boston office, did Mr. Sarhatt explain what the buzz saw was?”

“Yes, he did.”

“And what did he tell you?”

“Well, ASAC Larry Sarhatt told me that there was a fight between the Massachusetts State Police and the FBI agents Morris and Connolly, as I recall; and there were accusations flying back and forth to the extent that Morris and Connolly were undermining the state police investigation at Lancaster Street.”

“And they were undermining the investigation by leaking information to informants?”

“That’s what MSP said, yes.”

“And at the time that you came to the Boston office, were you asked to conduct any investigation as to whether or not it was correct that Morris and Connolly were leaking information to the informants?”

“Well, at some period thereafter I was asked by Mr. Sarhatt to go out and interview the informant, to actually assess the informant Bulger.”

“And why were you selected to assess Bulger?”

“Well, Larry knew I had a background in psychology, that I taught profiling at the FBI Academy, and I had a particular expertise in certain personality traits of the criminal and so forth. He wanted me to use that advantage. He wanted an objective assessment in terms of Mr. Bulger’s suitability and his continuance as an FBI informant.”

I believe it was during this period when the judge wanted to know how come no one else in the FBI could see the danger in keeping Bulger open as an informant. He cited the fact that the FBI offices in Miami and Oklahoma along with outside law enforcement offices all saw the problem with Bulger as an FBI informant; everyone, it seemed, did except the FBI leadership. In my mind I took this as a harbinger of what was to come regarding Judge Lindsay’s reaction to the entire Bulger situation.

“And when you say ‘suitability,’ you mean along the lines set forth in the guidelines?” Gordon resumed.

“Suitability may not have been the word he used exactly, but it entailed what he wanted.”

“And prior to that meeting with Mr. Bulger did you have any discussions with Mr. Connolly about Mr. Bulger as an informant?”

“No—not about Bulger. I had discussions with Mr. Morris,” I corrected for the record.

“Okay. And what discussions did you have with Mr. Morris?”

“I recall in a briefing prior to going out to Bulger that there was a statement where Bulger and Flemmi were heads of the WHO, the Winter Hill Organization. And I remember chiding Morris, saying, well, how can you have, you know, the head of the Winter Hill Gang as an informant?” I said, coming to the heart of the matter. The attention in the courtroom became even more riveted upon me.

“And do you recall anything else that Mr. Morris said back to you?”

“Well, afterwards we had quite a discussion, and I told him I was going to close Mr. Bulger. And he kind of snickered. And I said, well, what’s that about? And he said, ‘You can’t close him.’ I said, ‘What do you mean I can’t close him?’ And we had a bit of an argument, if you will. And I said, ‘I can close him if I want.’ To which he replied, ‘No, you can’t.’ That it just wasn’t going to happen. And that made me a little angry, to be honest with you.”

Judge Lindsay could no longer restrain himself, taking the unusual step to intervene in his own proceedings. I noticed him scratching his bald pate, which looked shiny under the courtroom’s bright lighting, a clear indication he was a bit flummoxed by what he’d just heard.

“May I ask a question?” he politely requested, not waiting for an answer before posing his question to me. “When you had the discussion with Mr. Morris about having leaders of a criminal enterprise as informants, what in your mind was the problem with that?”

I was, of course, more than happy to respond.

“Your Honor, if Bulger is the leader of the Winter Hill Organization, we would, in effect, be sponsoring the Winter Hill Organization. Because he would be privy to information, as we discussed, you know, during this trial and so forth. But my concern is that you cannot have the head of a group as an informant.”

“And is that true even if you’re using the head of the group to investigate another group?”

“Well, that makes it a little bit complex, and that certainly could have been part of the issue in trying to close Bulger. You could argue that point.”

“I don’t want to argue. I’m just asking.”

The judge seemed to be trying to understand how the FBI could keep Bulger open as a TE when he was the titular head of the Irish OC gang. This flew in the face of FBI rules and regulations as stated in the FBI manual. Especially since my testimony revealed I also headed up investigations of “nontraditional” organized crime, which included the prosecution of Bulger for his crimes. I could see the frustration as the good judge rubbed his scalp again, struggling to sort out the contradictions of allowing Bulger to continue his association in the face of facts that would argue against it. I recounted my own frustration at having to deal with this problem ever since I had arrived at Boston. My protestations against Bulger always fell on deaf ears. Finally, I felt like the judge would be able to make sense of something that had eluded so many over the years and, for his part, Gordon just continued carrying the ball Judge Lindsay had handed him.

“To follow up on the point that the Court asked,” he said, resuming his questioning of me, “one of the problems is that Bulger as an informant, as the head of one group, could be providing information to the FBI for his benefit to cause harm to that other group?”

“Well, he was allegedly providing information on the Angiulos and La Cosa Nostra.”

“And the Angiulos and the Winter Hill Organization were competing actually in the same criminal areas, were they not?”

“I would not say the same, but they certainly had the same interest, criminality and grabbing the different operations around the city, yes.”

“And if the Angiulos were in jail and couldn’t operate their business criminal enterprise, Mr. Bulger would be better able to operate his?”

I tried not to smile. “That’s right.”

By the end of this day I felt that the truth had finally come out. How could anyone listening to the testimony not conclude that keeping Bulger as an FBI informant went against all the rules and regulations the FBI had set for itself? And as the third day of testimony dawned, I was beginning to feel more confident that, at last, the fight I’d waged for so long was not in vain.