In the Wake of “Whitey”
In the Wake of “Whitey”:
Exploring the Legal Responses to Organized Crime
Fall 2011 Symposium
Summer 2011 was punctuated by the capture of James “Whitey” Bulger, Jr., one of the FBI’s Ten Most Wanted Fugitives and perhaps Boston’s most notorious criminal. Bulger was an informant for nearly two decades before he disappeared in 1994, after receiving a tip from his former FBI handler that he was about to be indicted.
Bulger is charged with 19 counts of murder, as well as extortion, money laundering, obstruction of justice, perjury, narcotics distribution, and weapons violations. So why did authorities put him on the federal payroll?
The New England Journal on Criminal and Civil Confinement (NEJCCC) assembled an expert panel for its fall 2011 symposium to review legal responses to the Whitey case and, more broadly, to organized crime. “In the Wake of Whitey” featured panelists well versed in the law’s relationship with the underworld.
Early federal response to organized crime was based on the activities of the Italian Mafia, explained former assistant U.S. attorney and journalist Lee Coppola. The Racketeer Influenced and Corrupt Organizations Act (RICO), created in 1970 to bring down La Cosa Nostra, would later be employed against Bulger, the leader of an Irish-American crime family.
Symposium attendees learned that what may seem incomprehensible to average citizens is less baffling to those who chase mobsters for a living. “Once you get into the murky world of organized crime, it’s not about making cases, it’s about making informants,” offered Pulitzer prize-winning Boston Globe reporter Kevin Cullen, who helped expose Bulger as an FBI informant in 1988.
Bulger, of course, was not alone, and panelists analyzed the rationale for hiring him by reviewing the circumstances of another Boston gangster, Mark Rosetti. Just weeks after Bulger’s arrest, it came to light that Rosetti, a suspect in several murders, was also on the FBI payroll.
Cullen made clear the dichotomy. “The FBI looked at Mark Rosetti and saw a valuable informant. The State Police looked at him and said, we’ve got to get this guy off the street.”
James Wedick, a retired FBI agent, discussed how these incidents may lead to a change of thinking within the bureau, which is now mainly focused on preventing another September 11. “When September 11 happened, it caused the bureau to sidestep the story of Whitey Bulger. Maybe we shouldn’t have had Whitey Bulger as an informant–we wouldn’t have Osama bin Laden or KSM [Khalid Sheik Mohammed, alleged to be the principal architect of 911] as informants.”
Prosecutors have a lot of discretion, said Professor Michael Cassidy of Boston College Law School, who cautioned, “Young lawyers in the room need to distinguish between informants and cooperating witnesses.” In the case of cooperating witnesses, the former chief of the Massachusetts Attorney General’s Office Criminal Bureau would evaluate, “How much confession do I need to offer? If he [the witness] confesses to too much he won’t be believed as a witness.”
Some valuable advice was dispensed by the Hon. Gerald Alch, former first justice for Dedham District Court. The former defense attorney teaches Trial Practice at New England Law, and he emphasized the importance of setting boundaries when associating with potential suspects: “I would only meet at my office; I wouldn’t socialize with them for dinner.
Other panelists included Col. Thomas Foley, former head of the Massachusetts State Police; Shelley Murphy, a Globe reporter who has covered organized crime in Boston since 1985; Ralph Ranalli, author, journalist, and nationally recognized expert on the FBI’s crime informant programs; and Donald Stern, who served as U.S. attorney for the District of Massachusetts and as chief legal counsel to Governor Michael Dukakis. Stern, a partner in the Boston office of Cooley LLP, received an honorary LL.D. from New England Law in 1997. Professor Natashia Tidwell was moderator.