Ex-FBI Agent Robert Fitzpatrick finished up his testimony, retired FBI Agent Joseph L. Kelly began and finished his. The latter testified that he was in the FBI office in Boston between 1972 and 1975, that he knew John Connolly, was on the C-3 organized crime squad with him, and that Connolly carried a lesser case load than the other agents. The reason for that was that Connolly was the informant coordinator for the office.
Kelly said he had informants. He said other agents had informants. No one knew who his informants were, and he didn't know the identities of other informants. He said there was only one agent in the office who had access to all the informant files. Not just those in the C-3 unit, but thanks to the government's cross-examination (pointing out the danger of asking a question when you don't know the answer) we learned he had access to every informant file in the Boston division. That agent was John Connolly.
If the defense's theory is right, that Connolly was pilfering the information agents were getting from other informants and putting it in Whitey's informant files, then putting Connolly as informant coordinator was like putting Agent John Morris in charge of a case of wine. Kelly had little else to offer other than he lived in New York and Prosecutor Wyshak and Agent Marra showed up at his house one day in 2006 to interview him
Speaking of the FBI here's a question for you: in what two ways does FBI Agent Fitzpatrick differ from FBI agents Robert Hanssen, John Connolly and John Morris. You know Hanssen is serving life in prison in ADX Florence Colorado for 15 counts of espionage; Connolly is serving 40 years in prison in Florida for being connected to a murder; and Morris, Connolly's supervisor, admitted taking bribes and tipping of the gangsters to investigations against them. He avoided prison by cooperating with the government.
Fitzpatrick never was accused of committing any crime; and, Fitzpatrick never got any retirement pay. The three agents who committed crimes did.
What's the lesson from all that? That there is only one real sin for an FBI agent and that is to try to be totally honest. If you see your fellow agent do something wrong and have he guts to speak up, you've sealed the edict depriving you of your retirement. Spies working for America against the Russians are murdered by the Russians because Hanssen gave them the spies identity. That is not as bad when it comes to getting retirement as reporting to headquarters that the special agent in charge leaked grand jury minutes to a defense lawyer.
Fitzpatrick is a guy who really loved being an FBI agent and thought his job was to be straight in all things. He rose to become one of two assistant agents in charge in the Boston FBI office, a top ten office. You'd think he would have had learned by that time that you don't rock the boat. If you do, then everyone else in the boat is going to be unhappy with you so to steady the boat again they will have to jettison you.
Now here's a puzzling thing in our society, no one likes a boat rocker like Fitzpatrick. We all have an instinctive feeling we have to keep the boss happy to make our own lives happy. If we see something not to our liking we tend to over look it unless it affects us personally. When we see someone upsetting the norm, then we think there's something wrong with him.
Fitzpatrick is portrayed as a Don Quixote fighting windmills. The media writes about the questions he is asked without providing us with his answers. Rather than portraying the man as one who stood up strong, FBI strong, it belittles him. The prosecution unseals a document meant to be kept sealed in order to embarrass him but what it did is embarrass the prosecution for being so tawdry.
Fitzpatrick said he ended up leaving the FBI because he was retaliated against for telling the truth (he was never accused of lying about the SAC); after the prosecution broke the promise of secrecy he said he was retaliated again today in court. Thus will it ever be for those who walk to the beat of different drummer for that drummer may very well lead you to the land of POOF.
Today we started off with Robert Fitzpatrick. When I left you last I told you I was getting to like the guy a lot more because he stood up well to what one person said was a “withering”(sic) cross-examination. It was much less than that. So I looked forward to seeing what would happen today.
Fitzpatrick unlike the other FBI agents who I have seen testify did not show up yesterday wearing the expected FBI court dress: conservative suit, white shirt, and conservative tie. He wore a gray sports coat with black lines, a black shirt with gray stripes and an open collar. I notice in his picture I put on my blog he seems to have a penchant for black and gray shirts. Today he wore light gray suit with a black jersey.
Yesterday a few things happened that I didn’t mention. Fitzpatrick never got a pension from the FBI for his more than 20 years service; both Morris and Connolly have received pensions. It shows you that the worst thing you can do in the FBI is embarrass the family by suggesting that other agents are otherwise than perfect.
The other thing a commenter name Declan pointed out was the use by the prosecution of a document, a letter from the Director of the FBI saying dreadfully negative things about Fitzpatrick. Fitzpatrick said he had an agreement with the government that would be sealed. Prosecutor Kelly said the agreement didn’t cover that and went to retrieve it but couldn’t find it. Today Fitzpatrick said he was retaliated against when he was on the FBI for doing his job in telling the truth and when he testified yesterday and today he was again retaliated against by Prosecutor Kelly using the documents against him that were supposed to be sealed. Kelly never produced the agreement.
However, today we saw a strange Fitzpatrick. The case started with him putting forth an extraordinary suggestion. He said that what he wrote in his book were things that he remembered but that does not mean they were necessarily true.
He said what he wrote was a memoir. Whenever it was shown that what he wrote did not comply with actuality he’d say well that is what I remembered. Following his logic he could write that on 9/11/2001 it was a very quiet and peaceful day in New York City. When told that was the day the terrorists attacked America and the World Trade Towers were destroyed, he’d just say well I remember it otherwise.
He refuses to have an independent memory of anything. He did not remember what he testified yesterday. When asked about something he'd say do you have a memo regarding that? Kelly would hand him the memo. He then read the memo that Kelly gave him. After he does Kelly tries to pin him down to what he said before as being contrary to what he said today. He’ll rationalize it into suggesting that opposite statements actually are the same thing.
He tells us he is going to write a memoir of the trial. How can someone write a book that he will allege to be factual but have as a bottom line whatever he remembers in his mind is factual?
Kelly had him pinned down in a trap with iron teeth and he’d manage to escape. But it was like he was wearing a nice shirt of truth when he came into the court and each time he escaped a little bit of the shirt was torn away. There was no killing blow but Kelly did enough to make one scratch her head at what the guy was all about.
It’s seems axiomatic that the difference between being an informant and a cooperating witness is the former will not testify and the latter will. Ask Fitzpatrick about it and he says that is not his understanding. The question is does the jury know his understanding runs against what is the fact.
He wrote he was paid by the Gardner Museum to do work in looking into the heist that occurred there; Kelly asked him if he can show any evidence of that. He said that someone else paid him but he assumed it was the Gardner Museum.
Kelly tried to point out that some of the things he was now saying he did not say back in 1998 when questioned. He asked him if his memory was better now than back then. He said in some things his memory is better today. I guess in his new book the story line will depend on what day it is written.
When Whitey told him he had paid people, he was asked what he did about it. He said there were more important things to do. He did not necessarily think that if Whitey was paying cops or agents it was necessarily a bribe.
Kelly asked him if he was the Fitzie who was drinking Beck’s beer with Whitey as set out in Whitey’s memoirs. Fitzpatrick said he didn’t drink Beck’s beer and denied he socialized with Whitey. I was hoping he’d introduce the memoirs – no such luck.
Overall I’m tempted to say the testimony neither moved the case forward or backwards. Let’s just put it this way: Fitzpatrick had no evidence relating to any of the crimes that were charged such as the murders, extortions, gaming, drug dealings or stuff like that.
So what purpose did he serve? It all was about the way the FBI operated and his relation to Connolly. But neither those issues are on trial. It did touch upon the issues of Whitey being an informant but that came out muddled. He kept talking about closing him out and Washington DC headquarters wanting to keep him open which would lead to the conclusion Whitey was an informant. This was good for the government. But the government pushed him on the issue that there is no evidence he wanted to close him out.
Why does the government care? Whether he tried to close him or not, it seems that he is an informant and that’s what the government wants to show.
This case easily gets thrown off track. We’ve wasted a day and a half paddling at two miles an hour against a current running at two miles an hour. You know how far that will get us.
After the jury went home the judge went over some of the outstanding matters that had to be considered before the case concludes. She went over her jury instructions with counsel and a few other matters. Then she brought up the issue that she postponed during the cross-examination of ex-FBI agent Robert Fitzpatrick, the entry into evidence of certain documents, including the photograph of Fitzpatrick standing at the grave site across from Florian Hall in Dorchester where the three bodies were unearthed.
To get a sense of this madness, you have to understand that the discussion of the matter of the photographs admissibility went on for over ten minutes. Put that in perspective of what this trial is about.
Whitey is supposed to be the top most wanted person by FBI; the leader of a Boston mob; personally involved in 19 murders, some vicious extortions, gaming, drugs, money laundering, machine guns, and some other serious stuff. The prosecutors walk away from those issues to spend time arguing over whether a photograph is admissible to show that Fitzpatrick who testified about none of the things in the previous sentence is misrepresenting that he was at the burial site at the time the bodies were dug up or discovered. The defendant opposes it. The judge is going back and forth on it.
It shows how a trial can spin out of control. First, the one photograph won't affect the jury's belief in Fitzpatrick's credibility one way or the other. It is the totality of his testimony that will be determinative of that. Second, Fitzpatrick's testimony only related to the operations of the FBI. That is the issue over whether Whitey was an informant which also has nothing to do with the charges.
The prosecution, with the defendant's happy helpful insistence, put the issue of informant into the case. We have now slipped into the realm of deciding whether people who knew about the informant issue are testifying truthfully. There are 19 elephants known as murders walking though the courtroom which for the most part have been ignored because Wyshak and Whitey want to duel over the informant issue.
I received a telephone call from a person who is very interested in this case. She told me she had been reading the courtroom tweeks and that Fitzgerald got taken apart in cross-examination by Kelly. I told her I didn't think he laid a glove on him.
I went and looked at the tweets. I can't believe we are watching the same trial. I could see why she believed that. All they report are Kelly's questions. Hardly do you see any of Fitzpatrick's answers.
Anyone who is a regular to this blog knows I'm no fan of Fitzpatrick. I didn't like his book and had expressed that feeling. I was anxiously waiting for his cross-examination. I expected, as my friend said he read in the tweets, that he'd be moidered.
Kelly went right after him with stinging questions but they bounced off him. He battered them away as easily as a fly swatter eliminates a fly. Kelly would say you can't be telling us that you did X because I have these reports saying Charlie Smith did them; Fitzpatrick would say, "like hell I can't. I was there. I know what happens. What the reports say that contradict what I'm saying are mistaken or wrong. I was there. I know what happened."
Here's my problem. I don't want to believe Fitzpatrick but the more he was cross-examined the more I began to do just that. When you expect someone to go down easily and he doesn't, but rather than that surprises you with his resilience, pluck and spark, you begin to think differently of the guy. I'm not much of judging a person by his bodily movements but Fitzpatrick was leaning forward, hands clasps with the attitude "bring it on. Is that the best you got?"
Damn he put on a good show. The only way he faltered, I thought, was when confronted with an imaginary conversation he put in his book between Whitey and John McIntyre. Kelly got him good on that. Fitzpatrick tried to weasel out it by putting it on his co-author, reminiscent of both Martorano and Weeks.
I'm curious whether those authors who made up their own conversation and put them in quotes felt a twinge of embarrassing knowing they too had done what Fitzpatrick did. I'm sure Fitzpatrick or his coauthor was just following what had become de rigueur in all these books about Whitey, making up conversations as if somehow they had a recording of what was said.
Kelly has a lot of good ammunition to use against Fitzpatrick. So far what he has tried to do has misfired. He's got to be a little more subtle. He can't push him into a trap, he has to lay the trap and have him walk into it. It may be too late for him to do that but if he's going to make headway against him he's going to have to do more that showing there was a photograph in Fitzpatrick's book that may have been misleading.
Kelly asked Fitzpatrick if one of the reasons he put that photograph in his book was to help sell his books. Fitzpatrick answered "yes."
I read one tweek saying "the cross-examination was withering." It was only that if you didn't pay attention to the answers. If you listened to Fitzpatrick, you'd see there's a long way to go to reach that point.