Bar News - September 22, 2006
NH Lawyers Win $3.1 Million from U.S. for Informant’s Murder
By: Dan Wise
Attorneys William Christie, left, and Stephen Gordon display a trial notebook used in a recent federal tort claims trial where they successfully sued the federal government for its role in the brutal murder of an FBI informant.
Against heavy odds, two New Hampshire attorneys succeeded in obtaining a $3.1 million award when a judge agreed that the federal government was responsible for the brutal murder of a government informant.
Steven Gordon and William Christie, of the Shaheen & Gordon law firm, representing the mother and family of John McIntyre, a commercial fisherman who was murdered in 1984, had asked for $50 million in compensation under the Federal Tort Claims Act (FTCA). The $3.1 million award is solely for compensatory damages, largely for the suffering McIntyre endured before his death, and for the family’s loss of his company, and for the funeral and burial costs.
McIntyre’s role as an informant was leaked to two Boston organized crime figures, James “Whitey” Bulger and Stephen Flemmi, by former FBI agent John Connolly, according to testimony by Flemmi in several proceedings. In horrifying detail, Flemmi, nicknamed “The Rifleman,” described how McIntyre was lured to a house in South Boston where he was chained to a chair, interrogated for hours, choked with a rope, and then shot several times after he asked for a quick death to end his suffering. His body was not discovered until January, 2000.
Connolly retired from the FBI in 1990 and was convicted in 2002 of racketeering charges for protecting Bulger and Flemmi from prosecution over many years. The lawsuit alleged that Connolly had tipped off the Boston gang members about McIntyre’s cooperation with the government. McIntyre had told prosecutors about a failed attempt by Bulger and Flemmi to smuggle weapons to the Irish Republican Army aboard a fishing boat as a money-making scheme. The government denied responsibility for Connolly’s actions, saying he was not acting as an FBI agent when he told the mobsters about McIntyre’s cooperation with law enforcement.
At a month-long trial in Boston this summer before U.S. District Court Judge George Reginald Lindsay, Gordon and Christie presented evidence that Connolly’s relationship with his informants, Bulger and Flemmi, had spanned two decades, and was endorsed and praised by his superiors at the FBI. Connolly had been “consistently recognized for his exceptional development of informants in general, and of Bulger and Flemmi in particular,” Lindsay wrote in a 110-page ruling issued Sept. 5. Furthermore, the agency had continued to use Bulger and Flemmi as informants even while they were suspects in criminal investigations.
Gordon and Christie presented evidence that the FBI had shielded the two Boston mob figures from prosecution, largely because they provided information that allowed the government to pursue Boston-area criminals who were part of the Mafia, an FBI priority at the time. For Bulger, informing on the Mafia had a double-benefit: he helped the FBI eliminate his rivals in organized crime, and he obtained inside information from Connolly in exchange for his information.
Lindsay was not persuaded by the government’s defense that it could not be held liable for Connolly’s misconduct. “Taken to its logical conclusion, the argument of the United States is that if the conduct was wrongful, though undertaken to achieve some proper government purpose, it is beyond the government employee’s scope of employment, because the employee was not hired to engage in wrongful conduct,” Lindsay found. “It is an argument that makes the FTCA [Federal Tort Claims Act] entirely pointless.”
The six-year legal battle is far from over: the government is expected to appeal the award, and Gordon and Christie are gearing up for the second phase of the trial which seeks compensatory and punitive damages against Connolly and his FBI supervisors.
According to testimony by Flemmi and other evidence, McIntyre was not the only victim of Connolly’s treacherous collaboration with Bulger and Flemmi. According to the Boston Globe, the McIntyre case is the first of 17 filed against the government by families of alleged victims of Bulger and Flemmi to go to trial—10 have been dismissed, primarily because of the statute of limitations, and six (including another family of a slain informant represented by Gordon and Christie) are set to go to trial. Christie is lead counsel in these consolidated cases pending before Lindsay.
How did a New Hampshire law firm become involved in a case involving a Massachusetts fisherman and smuggler, two members of South Boston’s Spring Hill Mob organized crime gang, and the U.S. Department of Justice? Gordon said that after McIntyre’s body was discovered in early 2000, and the close relationship between Connolly and his suspected killers emerged from Flemmi’s testimony, the McIntyre family conferred with a Boston attorney who referred them to Gordon.
“We had worked with this attorney, and he knew that we were willing to go against the government, and that we had the ability to put together the evidence that was needed and stay the course in a difficult, complex case,” said Gordon. The firm has historically represented a number of white-collar crime defendants in federal court, undertaken complex civil litigation, and has also pursued litigation against police officers on abuse of force allegations.
Gordon said that the case presented many challenges, chief among them that the defendant was the U.S. government which “had a lot of firepower to fight us at every twist and turn.” The territory was especially hostile ground for plaintiffs: the only recourse for suing the government is under the FTCA and it offers many defenses, said co-counsel Christie. Moreover, the plaintiff would be claiming that actions by an FBI agent criminally involved with his informants were the responsibility of the government.
“There wasn’t much guidance from existing cases,” Gordon said. “It was uncharted waters – but you are still putting a case together and working with what you have.” And they believed they had a set of facts that was both distasteful and powerful: a long pattern of collaboration between the FBI agent and two crime figures and a series of appalling violent crimes by the two career criminals. The relationship was not only condoned but celebrated by Connolly’s bosses because it had resulted in a number of arrests of organized crime figures.
There was much evidence to obtain, including several hundred-thousand pages of discovery from the criminal prosecutions and testimony by Flemmi, who had turned state’s evidence. Gordon said a major challenge was to be careful about choosing their battleground. “It was established that Connolly had leaked McIntyre’s cooperation. Our key issue was proving that his actions were within the scope of his employment—that he did it to help the government,” Gordon said. “We did not have to prove that Connolly’s superiors knew that he had [leaked information about McIntyre]—that was not the issue in the case. We were saying, ‘Were there enough red flags in the Boston office of the FBI that Bulger and Flemmi were extremely dangerous and that Connolly’s relationship was inappropriate?’”
“The government said it was fighting crime—the Italian Mafia was its top priority,” said Gordon. “But government officials were burying their heads in the sand to abhorrent conduct; and the government is accountable.”
“The challenge of a complex case like this is keeping it simple—trying the case as narrowly as we can,” Gordon added. “We had to be very careful about what issues we tried. You don’t want to go into one of a million rabbit warrens with no way out.”
While Gordon focused on the facts of the case, Christie concentrated on the law; navigating the forbidding terrain of the tort claims act, and fighting the government through the discovery process, as well as general pretrial maneuvering.
Firm members Lucy Karl and Arpiar Saunders, and staff members Charles Holoubek, Jessica Bellemore, and Beth Stevens, helped both attorneys put the case together. The trial team had to acquire, review, analyze and assimilate tens of thousands of documents: raw investigative files, departmental memos, trial transcripts and depositions—most of which were extracted from an extremely reluctant FBI.
Interviewed in their Concord offices—in a “war room” with dozens of battered bankers’ boxes lining one wall and a laptop on a nearby desk—Gordon and Christie acknowledged that technology was very important in managing the document-intensive case, but they underscored the importance of the human element. “Even though you have all of the documents in a database, and you use search engines to find things, what Bill [Christie] and I had to do first was go through every piece of paper—eyeball to brain—to decide what to keep and what to use,” Gordon said. “Out of all of these documents,” he said, his arm sweeping the rows of bankers’ boxes, “we decided to keep 80-90 documents for use as exhibits at the trial.”
The 18-day trial in Boston consumed the month of June and lasted into July, with Gordon and Christie working six or seven days a week, preparing for witnesses and still fighting discovery battles during the trial. At one point, when the government attorneys fought against the introduction of an FBI summary of a series of documents, saying that it did not know what the summary was based on, Christie responded by subpoenaing all of the underlying files for the summary—a document cache that amounted to two or three truckloads of files, the government said. Lindsay allowed the summary to be introduced.
A testament to the amount of preparation the trial required: Gordon showed one of his trial notebooks—for just one witness. The loose-leaf binder had a four-inch thick stack of papers, with more than two dozen tabs and an index to the file numbers on the electronic version. The binder was well-thumbed and the photocopied documents were covered with cryptic notations of points to be covered, and circled or highlighted words.
“In a complex case, you have to simplify the story, identify what’s important and know the file better than your adversary,” Christie said. “There were times during the trial when the government did not know something about a document—their own document—that we used,” Gordon said. “That never happened to us.”
Lindsay’s order, issued the day after Labor Day, was cause for celebration, but Gordon and Christie prefer to see it merely as a big step forward on a long road. “It is difficult to celebrate the case now; we are still in a period of transition,” said Gordon with a smile. “We have passed the 50-yard line and we still have the ball. That’s a good thing.”
Financially, the case is expensive to try and the rewards remain distant. Although the attorneys are to receive about 25 percent of the award and will seek legal fees from the government, it will likely be some time before they see the compensation, given how hard-fought the case has been to date. The civil case has the potential for much larger awards for punitive damages, but the plaintiffs will have to cover more legal ground to extract that money from the government.