Where the Bodies Were Buried (53 page)

The context for this memo had been established for the jury earlier in the trial, during the testimony of James Marra from the Inspector General's Office. Marra had read from a series of memos that were generated when the Lancaster Street garage investigation, led by the Massachusetts State Police, had been compromised. The staties were angry; they believed that Morris and Connolly had leaked information to Bulger, who they suspected but could not prove was an FBI informant.

The Lancaster Street garage fiasco had reverberated throughout the Justice Department. Accusations were flying back and forth between various law enforcement agencies. Since his arrival, Sarhatt had concerns about Connolly and Morris's management of the Bulger situation, which he had inherited. He knew that it was a potential hot potato, with powerful forces—including Strike Force chief O'Sullivan—acting as an advocate for Bulger and Flemmi. But Sarhatt felt that he could no longer operate in the dark. He figured he'd better look into the Bulger situation for himself.

On the day after Thanksgiving—November 25, 1980—at the Logan Hilton Inn, a hotel near the airport, Sarhatt met face-to-face with Whitey Bulger. Morris and Connolly were also present. It was a long meeting—four
hours—at which the top man in the FBI Boston division and the boss of the Irish Mob had a lengthy conversation. Afterward, back at the office, Sarhatt dictated the details of the meeting to secretary Desi Sideropoulos.

In part, the memo read:

One of the reasons Sarhatt wanted to meet with Bulger was that he had been told the mob boss had on his payroll a corrupt state trooper. The name of that trooper—David Schneiderhan—had not yet been revealed. Sarhatt wanted to know the name of the dirty trooper.

This, of course, was not true. The Winter Hill Mob had for years been paying Schneiderhan. Whitey had other lies to pass along:

At the end of his memo, in a section headlined “Observations,” Sarhatt gave his personal opinion on Bulger's value as an informant:

SAC Sarhatt was not only recommending that Bulger be closed, but that he be targeted for criminal investigation.

As she took down her boss's dictation, secretary Sideropoulos did not know the identity of BS-1544 TE. Even if she had been told the name James Bulger, it probably would not have meant anything to her. Desi had no clue that this memo was any different than the many others she wrote up, until she was finished.

“Did [Sarhatt] give you any instructions about where to keep the original of this document?” asked defense lawyer Carney.

“He told me to keep it in an envelope, a sealed envelope.”

Sideropoulos then explained that back in the 1970s and early 1980s, the SAC's office had a private safe. Occasionally, the secretary was asked to label a document “strictly eyes only,” meaning that it was personal and confidential to the SAC, and place it in the safe. No one else in the division had access to the safe. It was a place where memos went to die.

Sarhatt instructed Sideropoulos to put the sealed memo into the private safe.

At the time, Sarhatt had already been designated for a new assignment; he had only a few months left in Boston. He told the secretary, “Whoever the new SAC is, make sure they read that document.”

Later, when the new SAC took over, Sideropoulos did as she was told. She referred James Ahearn, the new SAC, to the controversial memo.

“After Ahearn read the memo,” asked Carney, “did he give you directions what to do?”

“He told me to destroy it.”

“What did he say when he told you that?”

“He told me to destroy it or we'll all get fired.”

Again, Sideropoulos did as she was told. She destroyed the document that had been locked away in the safe.

For the defense case, this revelation was akin to a “smoking gun” moment. What was so dangerous about a memo suggesting that James Bulger be closed as an informant? Why was the bureaucracy, in the person of a respected supervisory agent, seeking to protect itself by destroying potential evidence?

The defense did not have the answers to these questions, but by planting the seed of doubt in the collective mind of the jury, they were hoping to undermine its confidence in the government's case.

Thirty years passed before Sideropoulos was ever asked about the memo. In preparation for the Bulger trial, she was contacted by Wyshak and Kelly. They had uncovered a version of this memo that existed in the FBI's administrative file in Washington, D.C. A version of the memo had been sent to headquarters, but was it the same version that had existed in the SAC's safe?

When Sideropoulos was asked about the memo, she admitted that she had destroyed the original pursuant to an order from her boss. They asked if she could re-create the memo based on her original dictation notes. She said that she could—and did—re-creating a memo that she believed was identical to the one that had been destroyed. Which led to another startling revelation: the memo that existed in the files at headquarters was identical until the last section, under the heading “Observations,” where Sarhatt recommended that Bulger be closed as an informant and targeted for investigation. That section had been deleted from the memo.

Someone had doctored it.

Was it altered in Boston before it was ever sent to headquarters? Or had someone in Washington deliberately deleted the section advising that Bulger be closed as an informant and prosecuted?

More confounding questions, especially since the passage of time made it possible for those responsible to scurry into retirement and disappear. The deceit that had contributed to this blatant obstruction of justice was absorbed into history and successfully buried within binary modes of concealment deep within the system. Those entrusted with the role of safeguarding the Bulger conspiracy had fulfilled their duties. Seemingly, the
system did what it was supposed to do: protect itself from exposure and criminal liability.

THERE WAS ONE
final witness after secretary Sideropoulos. John Martorano was called back into the courtroom to testify regarding one limited matter.

It was almost nostalgic to see Martorano again take a seat on the witness stand, two months after he first appeared. As before, he was dressed in a tailored blue suit, only this time with no tie, collar open, with a light blue, striped shirt. He had a silk hanky in his breast pocket and designer glasses with tinted lenses. His deep tan and who-gives-a-fuck physique, redolent of an independent life of leisure, seemed to reflect his inner self: he looked like a mob hit man just flown in from South Florida.

Johnny had been re-called to set the record straight. Back in the early 1980s, while he was on the lam down in Clearwater, the hit man had spoken on the phone with Steve Flemmi about the demise of Debra Davis. According to Martorano, Flemmi had more or less admitted that he killed his ex-girlfriend. He told Martorano that he “accidentally” strangled her. Martorano asked his Winter Hill partner, “Stevie, how do you accidentally strangle somebody?” Flemmi gave a half-assed answer that, to Martorano, was none too convincing.

When defense lawyer Carney presented the witness with a transcript of previous testimony he had given at another proceeding, Martorano removed his tinted shades and replaced them with reading glasses. When he had finished reading the section he had been instructed to read, he switched back to the shades.

In less than fifteen minutes, the questioning went from direct to cross to re-direct and back again. The defense had put Martorano on the stand to deflect responsibility for the Davis murder from Bulger to Flemmi. The prosecution kept wanting to bring it back to Bulger. In a final question, Fred Wyshak asked the witness, “Mr. Martorano, when you were in Florida in 1981 when Ms. Davis disappeared, who was Mr. Flemmi's criminal partner in Boston?”

“Whitey,” said Martorano.

It was the final word spoken during testimony in the trial of James Bulger.

After Martorano was dismissed, an air of restless expectation rustled through the spectators' gallery in the courtroom. The moment of reckoning had arrived: would Whitey take the stand and testify in his own defense?

The suspense was palpable but also artificial, like a nondairy sweetener with a stale aftertaste. Carney had begun the trial by all but promising the media that Bulger would testify, but he had tellingly not promised that to the jury, either in his opening statement or during the trial. Most legal experts and observers noted that it would have been unprecedented for Bulger to take the stand in a trial of this type. It was highly unlikely. And as the proceedings unfolded, with the defense lawyers being restricted by the judge from pursuing avenues of evidence that were to Bulger's liking, the possibility of him taking the stand diminished even more.

As much as everyone—including the media, the lawyers, the community, and probably the jury—would have welcomed hearing directly from the man who had been the focus of so much testimony over the last two months, there was never much chance that Whitey would take the stand.

The jury was removed from the courtroom. The judge called the lawyers over to her bench for a sidebar conference. There, Carney informed legal counsel and the judge that the defendant had decided not to testify. Casper indicated that she would like to ask the defendant a few questions about his decision, and that this should be done in open court.

The lawyers walked back to their respective tables.

Judge Casper looked directly at the defendant. “Mr. Bulger, I just want to address you directly.”

Whitey stood up. It had been noted by those who had been following the trial on a daily basis that, as the proceedings continued over the summer, it seemed as though the defendant was physically diminishing in stature. Certainly, he had become more pale and, given the likelihood of less-than-stellar prison cuisine and a limited diet due to heart health concerns, Bulger had thinned down until he looked like exactly what he was: a frail, aging man in his eighties. The disparity between what he had been and what he had become was enough to hush the room into silence.

The judge continued: “You understand that this is the juncture of the case at which I ask for a decision about whether or not you're going to
testify. Mr. Carney has represented on your behalf that you're choosing not to testify. Is that correct?”

“That is correct,” said the defendant.

It was not the first time we had heard Bulger's voice. Earlier in the trial, the prosecution had played two recordings of conversations that Bulger took part in while incarcerated at Plymouth County Correctional Facility. One of the conversations was with Bulger's brother Jackie, and another with his nephew, a son of his brother Billy. Bulger would have known that all phone conversations at the prison were recorded. The prosecutors tried to suggest the recorded conversations had probative value, but really they seemed like a stunt by the government to show that they finally got Whitey Bulger's voice on tape.

Bulger's voice was reedy and taciturn, the Boston accent diluted somewhat, perhaps by his having spent sixteen years in Santa Monica trying to disguise his Southie roots.

Judge Casper asked Bulger if he had made his decision not to testify after careful consultation with his lawyer.

“Yes, I have,” he said.

“Are you making the choice voluntarily and freely?” she asked.

Bulger was ready with a little speech that he likely prepared: as he began to speak, his voice wavered—he was nervous, no doubt, having to play the role of Whitey Bulger, the legend whose motivations and exploits had come to dominate the lives of all who had followed his life story over many decades.

“I'm making the choice involuntarily,” said Bulger. “I feel that I've been choked off from having an opportunity to give an adequate defense and explain my conversation and agreement with Jeremiah O'Sullivan. For my protection of his life, in return, he promised to give me immunity.”

At the word
immunity,
the judge jumped in: “I understand your position, sir, but certainly you're aware that I have considered that legal argument and made a ruling.”

“I understand,” said Bulger.

“And I understand, sir, if you disagree with it, okay?”

“I do disagree. And that's the way it is. And my thing is, as far as I'm concerned, I didn't get a fair trial, and this is a sham, so do what youse want with me. That's it. That's my final word.”

From somewhere in the spectators' gallery, a voice rang out: “You're a coward!” It was Patricia Donahue, widow of Michael Donahue, shouting from among the spectators.