Bulger Day 30: The Defense Makes Its Case

So Whitey Bulger’s on trial and you’re interested in hearing about it, but you’ve got this darn day job and you can’t manage to keep up with all the live tweets. We feel you. Here’s what you missed. (Past coverage here.)

The lawyers pulled a Freaky Friday today, the first day of Whitey Bulger’s defense, as it became the Bulger defense team’s turn to guide witnesses through their testimony and the prosecutors job to discredit them. Of course, by “them,” we mean “him.” Though the defense predicted they’d plow through 15 witnesses in the next two days, they actually made it only partway through the first one, a very talkative former FBI agent and author of the book Betrayal named Bob Fitzpatrick.

From the stand, Fitzpatrick first described an FBI culture that rewarded cultivating informants, one that occasionally drove agents to take the names of dead people off their graves and claim them as sources. (Subtext: John Connolly lied about obtaining information from Whitey Bulger because it made him look good. Or so Whitey would have you believe.) Fitzpatrick then detailed an investigation he made into Bulger’s suitability as an informant, following up on allegations from other law enforcement agencies that FBI Agents John Morris and John Connolly were protecting him. Fitzpatrick didn’t like what he found when he and Morris went to Bulger’s Quincy condo.

“I put out my hand to shake his hand and he didn’t take it,” he said. Bulger also described himself to Fitzpatrick as the head of the Winter Hill gang and refused to elaborate when asked what information he’d been giving the FBI. To Fitzpatrick’s dismay, John Connolly strolled in partway through the interview, though he wasn’t supposed to be present.

Fitzpatrick says that he told Morris he would recommend Bulger be closed as an informant, to which Morris, his subordinate, replied “No you’re not.” And indeed, Fitzpatrick’s higher-ups wanted Bulger around and his recommendation wasn’t heeded.

The cross: Assistant U.S. Attorney Brian Kelly’s cross-examination was one of the more deflating we’ve seen so far. His first question off the bat: “You’re a man who likes to make up stories, aren’t you?” Yowza. Kelly then compared stories Fitzpatrick told in his book with official records that didn’t measure up. Why, Kelly wanted to know, does Fitzpatrick claim he recovered the gun used to shoot Martin Luther King Jr. (really) if a 200 page FBI report makes no mention of him?

Kelly used Fitzpatrick’s book to good effect in other ways, too, noting that he calls Bulger an informant over 100 times, and refers to him as “a stone killer” and “a psychopath.” Fitzpatrick blamed some of the book’s apparent flaws on his co-author, but also stated unequivocally that Bulger was an FBI informant, otherwise Fitzpatrick would have never gone to Quincy to interview him, which, given Bulger’s goal of exonerating himself in the eyes of those who don’t abide rats, wasn’t such a great admission from his own team’s witness. Alas, court adjourned before Kelly could continue with his withering cross, so we’ll be back for more tomorrow.

Defense plans: Without the jury present, Judge Casper has been considering several planned elements of Bulger’s defense with the lawyers. Defense lawyer J.W. Carney Jr. asked today that the jury be sequestered during deliberations. This feels mostly like a way for him to publicly vent about the media’s bias against his client without holding a press conference (which the judge won’t allow.) But it seems unlikely the judge will demand it at this stage in the game, given she’s left the jury unsequestered thus far with instructions not to read the news.

Judge Casper ruled today that Marion Hussey could testify that her daughter was molested by Stephen Flemmi. Flemmi, of course, accused Bulger of strangling Deborah Hussey in his testimony. Marion Hussey, the prosecutors note, is terminally ill and perhaps unable to testify, so they suggested using an earlier recorded deposition. As for Pat Nee, the judge is still debating whether to make him take the stand, but said today that if he does, he’d be allowed to invoke his 5th Amendment rights given he’s been named as a participant in several of the murders at hand, though has yet to be charged for any of them.