“No. I’m comfortable about my safety,” said Flemmi. “I’m not concerned about it at all.” But inside Flemmi had to be churning, bewildered by this turn of events. Ever since his arrest in early 1995, he’d kept quiet about his secret life with the FBI. He’d viewed his arrest as a mistake, or maybe somehow necessary as a cover to conceal his ties to the FBI, but a charade that would eventually be resolved quickly by Bulger and their friends at the FBI. “I believed that James Bulger would contact the people that would be able to help us because we were involved with the FBI for so many years,” Flemmi said later. He was quietly biding his time, remembering that years before, in the 1960s, it had taken Paul Rico and the FBI nearly four years to clean up the murder and bombing charges against him and pave the way for his return from Canada.
Flemmi also realized that the real reason Wyshak was fighting Cardinale about the disclosure of informant identities was not out of any love for him. Wyshak was trying to keep the case clean and straightforward and prevent Cardinale from knocking out any evidence. But now the judge was telling him that the fact he was an FBI informant was likely to come out; after all the history between him and Bulger and the FBI, Flemmi felt betrayed. He wasn’t alone. Bulger sidekick Kevin Weeks had been serving as a messenger between Flemmi and Connolly, paying Flemmi regular visits in prison. “The information I received from Kevin Weeks from John Connolly was that he was very upset about the situation that Jim Bulger and I were in,” Flemmi said.
What about Ken Fishman, Wolf asked. Does your lawyer know about any of this?
“I’ll tell him right now,” Flemmi answered. “I don’t have a problem with that.”
“Can I bring him in and do that?”
“Absolutely.”
Flemmi, seeming to grow bouncy, complimented Wolf, offering the judge a wiseguy pat on the back. “Your honor, you’re getting to the core of the matter. There’s no doubt about that. You’re right there. If you go a little further, you could get the whole complete story.”
Fishman returned, and the judge summarized Flemmi’s past, explaining that he’d been given government materials saying Flemmi had been an informant “for many, many years.” Paul Coffey of the Justice Department soon returned, saying, “If the court will let me, I’d like to talk to him.”
Coffey turned to Flemmi and Fishman. “I’d like an opportunity to sit down with both of you someplace and tell you what I think needs to be done.”
“Great,” Fishman replied sarcastically. The lawyer was doing his best to keep up appearances. The disclosure was like a sharp jab that had left him stunned, and even though he’d been around long enough not to reveal how shaken he was, his head was swimming. “After twenty-two years as a criminal defense attorney, you have a visceral reaction, a certain inherent distaste for an individual who has chosen to serve as an informant,” he said.
The lawyer also knew exactly what angle Coffey was working—exploit the shock of the moment, quickly persuade a “back on his heels” Flemmi to enter the witness protection program, and testify on behalf of the government against the others.
Coffey went ahead and made his pitch. Flemmi curtly said no. “If I was so valuable to you, what am I doing here?” Fishman was trying to shake loose of his own confused feelings. He wanted time alone with his client. He needed to figure out what to do, and he was soon already thinking about a plan that would turn the “negative information” into a positive. Because the government, Fishman could argue, had “authorized” Flemmi and Bulger to commit crimes in a trade for their underworld intelligence, the mobsters could not now stand trial for crimes they were given permission to commit.
It would become known as the “informant defense,” and to support his claim Flemmi soon began filing sworn affidavits describing his life with the FBI and the promises he said FBI agents had made to never prosecute him and Bulger.
ON May 22, culminating the months of closed hearings and the legal papers filed under seal, Judge Wolf granted Cardinale’s wish for an open, evidentiary hearing. In a forty-nine-page ruling, Wolf said the purpose of the discovery hearing would be to allow Cardinale and other defense attorneys to question FBI agents and officials about the bureau’s relationship with Bulger and Flemmi so that he could decide whether tapes and other evidence should be suppressed. To that end, the judge said he had decided he had to order the Justice Department to disclose publicly whether Bulger, Flemmi, and the other names included in Cardinale’s original motion had been in fact “secretly providing information to the government.”
The government, noted Wolf, did have other options if it did not want to comply with his order. He acknowledged that his ruling undercut the “generally recognized interest of the government in maximizing the confidentiality of its informants in order to encourage the flow of information from informants.” He said that at times the government “elects to dismiss a case rather than confirm or deny the existence of a cooperating individual.” But, concluded Wolf, if the government wanted to continue against the Mafia and the Bulger gang, it would have to share its secrets.
Wyshak urged Wolf to reconsider, but the judge said no.
Despite the ruling, this team of prosecutors was not about to drop the case. There was no turning back. The Justice Department therefore decided to go ahead and do what no federal official in Boston had ever done: on June 3, 1997, more than two decades after John Connolly first approached Whitey, it confirmed for the court Bulger’s role as a longtime FBI informant.
Paul Coffey uttered the magic words: “I, Paul E. Coffey, being duly sworn, depose and say, that pursuant to this Court’s Order of May 22, 1997, I hereby confirm that James J. Bulger was an informant for the Boston Division of the Federal Bureau of Investigation (FBI).” For now, wrote Coffey, the government was only going to name Bulger, and he explained why, in Bulger’s instance, the decision was made to break from the strict practice of protecting the confidentiality of informants. Bulger, he wrote, “is accused of leading a criminal enterprise which committed serious violent crimes continuously over many years.” It was a crime spree, wrote Coffey, that overlapped with his work as an FBI informant. Moreover, Bulger, as a fugitive, was now trying to escape responsibility for his many alleged crimes. These factors combined to create “unique and rare circumstances,” wrote Coffey, which allowed for outing Bulger in order to put him behind bars. “Bulger has forfeited any reasonable expectation that his previous informant status will remain confidential.”