The night before the hearing the lawyer shared this latest theory with his colleagues in a meeting at Ken Fishman’s office. There was John Mitchell, a New York City attorney who had joined Cardinale in representing Salemme and DeLuca, along with attorneys representing John and James Martorano. The half-dozen men and women were gathered around a conference table in the office on Long Wharf in a building that was rustic waterfront—restored red brick and exposed wood beams—next door to the New England Aquarium. Cardinale couldn’t even get through explaining his hunch when the other attorneys nearly hooted him out of the room. Mitchell looked at his pal and told him, quit being an asshole. Ken Fishman rolled a piece of paper up into a ball and tossed it at his former partner. No one had ever really talked about Flemmi as being part of the rat pack.
“Everybody had this sense that this guy was different than Bulger. He had been caught, and he was sitting in jail, and he was part of this ‘all for one and one for all’ defense effort,” said Cardinale. “I was convinced otherwise.”
During the meeting Cardinale did not even know if Fishman and his client had ever discussed Flemmi’s secret double life with the FBI. In fact Fishman was flummoxed hearing Cardinale say he was planning to go after Flemmi. “I don’t know that I have reacted so dramatically to anything Tony has ever said in the last twenty years,” Fishman said. The other lawyers insisted that Cardinale was misreading the judge and was way out of line.
But Cardinale wanted to prepare them for the possibility he was correct. He told the lawyers he’d already explained his plan to his clients, going over the underlying risk to this roll of the dice: if true, Flemmi might flip and turn against the other defendants in the case. For his own client, Frank Salemme, the potential exposure was limited. “Frank had been in jail for most of the Bulger-Flemmi reign, so Flemmi couldn’t give up much as far as Frank was concerned.” For the others, however, the risk was real.
The next morning the defense lawyers, their clients, and the prosecuting team led by Wyshak and Paul Coffey of the Justice Department all assembled behind the closed doors of Judge Wolf ’s courtroom number 5 in the federal courthouse in Post Office Square. “We’re here pursuant to my April 14 order, which is under seal,” said Wolf from the bench, getting right into it. “I will say that I’ve closed the courtroom to the public because the matters that we will be discussing will relate to the disclosure to defendants and possible public disclosure of confidential informants.”
The judge reviewed Cardinale’s motion, mentioning the names Cardinale had included—Bulger, Kenny Guarino, Anthony St. Laurent, and two other underworld figures. The judge paused and looked up from the paperwork.
Then came the question Cardinale had been waiting for.
“Are the defendants interested in knowing about other individuals who might be similarly situated, if those people are indeed confidential informants? Or is it just those five?”
There was silence; all the dark matter that defined the world of Bulger and Flemmi as FBI informants was about to begin to ooze out, like toxic waste that had finally eaten its way through containers meant to seal the poison forever.
“It was a weird moment,” recalled Cardinale. The judge, he said, had “a kind of smile on his face. I knew then that my hunch was not just a hunch.” Cardinale walked over to his clients, Salemme and DeLuca. The lawyer knew there was no turning back. “I said, ‘Listen, we’re taking this step now. It could have some very negative impact. This guy could roll.’ But their position was, ‘Hey, Flemmi can’t say anything about me. He’d have to lie, so go on. Do it.’”
Cardinale turned and faced the front of the courtroom. The judge’s question was pending: is it just those five?
“As the old saying goes,” Cardinale said, “in for a penny, in for a pound, Judge. If there’s more, so be it.”
“That means you want it?” the judge asked.
“Yes.”
MINUTES after Cardinale’s reply, Wolf retired to his chambers. He ordered Paul Coffey of the Justice Department to come along with him. During the brief recess the judge and the Justice Department official discussed the crossroads the case had reached. Coffey told the judge that “our relationship,” meaning the FBI’s, was not just with Bulger but included Flemmi too. That was the point, the judge replied. If the judge was going to allow the defense to explore whether any of the evidence was poisoned by the FBI’s ties to Bulger, then Flemmi had to be part of that. It made no sense otherwise. (Wolf would later write that the two were “virtual Siamese twins.”) Both acknowledged that Flemmi, seated in court, did not seem to realize what was about to occur.
The judge left his chambers and returned to the courtroom, where the lawyers and the defendants had simply sat, waiting. Wyshak and his team tried again to stop Wolf from going any further, insisting that the informant angle Cardinale was pushing was no more than a red herring. Cardinale protested. Wolf called a halt to the debate. “Unless the government objects, I’d like to see Mr. Fishman and Mr. Flemmi in the lobby,” the judge decided.
“There’s something that’s come to my attention that’s negative about you,” Wolf said to Flemmi as soon as he, Flemmi, and Fishman had sat down in the private chambers. “I’m going to encourage you to think about it.”
“That’s fine,” said the ever-casual Flemmi. No sweat.
Judge Wolf asked Fishman to leave the room. Then he told Flemmi he would have preferred to have Fishman present for their chat, but he didn’t know how much information Flemmi had shared with his attorney about his past. Out of caution, the judge said, it was better to talk alone first.
“I just want you to listen to this,” Wolf said.
The judge reviewed Cardinale’s motion to Flemmi—how Cardinale wanted certain FBI informants identified as part of an effort to challenge the admissibility of the prosecution’s case against Frank Salemme and the others. Wolf told Flemmi that, as part of that process, he’d received documents informing him that Bulger—and Flemmi—were indeed informants. Wolf said he was inclined to rule in Cardinale’s favor and permit discovery of FBI informant names. In short, the judge was going to require that the FBI disclose publicly its work with Bulger and Flemmi.
“Do you feel comfortable about what we’re going to do with this?” Wolf asked after he’d finished his lecture. “Do you feel fear or anything?”