[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
INVESTIGATION INTO ALLEGATIONS OF JUSTICE DEPARTMENT MISCONDUCT IN NEW
ENGLAND--VOLUME 2
=======================================================================
HEARINGS
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 13, 14, AND 27, 2002
__________
Serial No. 107-56
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
U.S. GOVERNMENT PRINTING OFFICE
78-662 WASHINGTON : 2002
________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
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COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California PATSY T. MINK, Hawaii
JOHN L. MICA, Florida CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
BOB BARR, Georgia DENNIS J. KUCINICH, Ohio
DAN MILLER, Florida ROD R. BLAGOJEVICH, Illinois
DOUG OSE, California DANNY K. DAVIS, Illinois
RON LEWIS, Kentucky JOHN F. TIERNEY, Massachusetts
JO ANN DAVIS, Virginia JIM TURNER, Texas
TODD RUSSELL PLATTS, Pennsylvania THOMAS H. ALLEN, Maine
DAVE WELDON, Florida JANICE D. SCHAKOWSKY, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
ADAM H. PUTNAM, Florida DIANE E. WATSON, California
C.L. ``BUTCH'' OTTER, Idaho STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia ------
JOHN J. DUNCAN, Tennessee BERNARD SANDERS, Vermont
------ ------ (Independent)
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Jim Schumann, Counsel
Chad Bungard, Counsel
Matthew Rupp, Counsel
Robert A. Briggs, Chief Clerk
Nick Mutton, Assistant to Chief Counsel
Phil Schiliro, Minority Staff Director
C O N T E N T S
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Page
Hearing held on:
February 13, 2002............................................ 1
February 14, 2002............................................ 93
February 27, 2002............................................ 641
Statement of:
Duke, Steven, esq., Yale University law professor............ 706
Garo, Victor, esq., attorney for Joseph Salvati.............. 668
Harrington, Edward F., senior Judge, Federal District Court,
former assistant U.S. attorney............................. 107
Lawrence, Frederick M., esq., Boston University law professor 686
McGuigan, Austin, former Connecticut chief State's attorney.. 674
Miller, Marteen, former public defender; Edwin Cameron,
former investigator; and Tim Brown, former detective
sergeant, Somona County Sheriff's Office................... 31
Letters, statements, etc., submitted for the record by:
Barr, Hon. Bob, a Representative in Congress from the State
of Georgia, exhibit 18..................................... 129
Burton, Hon. Dan, a Representative in Congress from the State
of Indiana:
Exhibit 8................................................ 120
Exhibits 9 and 10........................................ 122
Exhibit 11............................................... 125
Prepared statements of............................. 7, 102, 648
Prepared statement of Mr. Gershman....................... 643
Prepared statement of John Cavicchi...................... 94
Clay, Hon. Wm. Lacy, a Representative in Congress from the
State of Missouri, prepared statements of................ 44, 746
Cummings, Hon. Elijah E., a Representative in Congress from
the State of Maryland, prepared statement of............... 664
Delahunt, Hon. William D., a Representative in Congress from
the State of Massachusetts:
Exhibit 15............................................ 151, 179
Exhibit 16............................................... 182
Letter dated July 31, 1973............................... 84
Duke, Steven, esq., Yale University law professor, prepared
statement of............................................... 708
Duncan, Hon. John J., a Representative in Congress from the
State of Tennessee, prepared statement of.................. 19
Garo, Victor, esq., attorney for Joseph Salvati, prepared
statement of............................................... 672
Harrington, Edward F., senior Judge, Federal District Court,
former assistant U.S. attorney, prepared statement of...... 110
Horn, Hon. Stephen, a Representative in Congress from the
State of California:
Exhibit 18............................................... 140
Exhibits 20 and 21....................................... 142
Exhibit 25............................................... 167
Exhibit 26............................................... 172
Exhibit 27............................................... 175
LaTourette, Hon. Steven C., a Representative in Congress from
the State of Ohio:
Exhibits 2 and 3......................................... 57
Exhibits 4 and 5......................................... 65
Exhibit 6................................................ 71
Lawrence, Frederick M., esq., Boston University law
professor, prepared statement of........................... 690
McGuigan, Austin, former Connecticut chief State's attorney,
prepared statement of...................................... 680
Tierney, Hon. John F., a Representative in Congress from the
State of Massachusetts:
Exhibit 2................................................ 52
Prepared statements of................................. 24, 653
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statement of................. 15
THE CALIFORNIA MURDER TRIAL OF JOE ``THE ANIMAL'' BARBOZA: DID THE
FEDERAL GOVERNMENT SUPPORT THE RELEASE OF A DANGEROUS MAFIA ASSASSIN?
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WEDNESDAY, FEBRUARY 13, 2002
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10:49 a.m., in
room 2154, Rayburn House Office Building, Hon. Dan Burton
(chairman of the committee) presiding.
Present: Representatives Burton, Barr, Morella, Horn,
LaTourette, Duncan, Waxman, Kucinich, Norton, Cummings,
Tierney, Clay, Watson, and Delahunt.
Staff present: Kevin Binger, staff director; James C.
Wilson, chief counsel; David A. Kass, deputy chief counsel;
Mark Corallo, Director of Communications; Thomas Bowman, senior
counsel; Chad Bungard and James J. Schumann, counsels; Robert
A. Briggs, chief clerk; Robin Butler, office manager; Elizabeth
Frigola, deputy communications director; Joshua E. Gillespie,
deputy chief clerk; Nicholis Mutton, assistant to chief
counsel; Corinne Zaccagnini, systems administrator; Phil
Barnett, minority chief counsel; Jon Bouker, minority counsel;
Michael Yeager, minority deputy chief counsel; Ellen Rayner,
minority chief clerk; and Earley Green, minority assistant
clerk.
Mr. Burton. The Committee on Government Reform will come to
order. I ask unanimous consent that all Members and witnesses'
written and opening statements be included in the record.
Without objection, it is so ordered.
I ask unanimous consent that all articles, exhibits,
extraneous or tabular material referred to be included in the
record and without objection it's so ordered.
I ask unanimous consent that a binder of exhibits for this
hearing be included in the record and without objection it's so
ordered. I also ask unanimous consent that questioning on the
manner under consideration proceed under clause 2J(2) of House
rule XI and committee rule 14 in which the chairman and ranking
minority member allocate time to committee counsel as they deem
appropriate for extended questioning, not to exceed 60 minutes
divided equally between the majority and the minority. Without
objection, it's so ordered.
I also ask unanimous consent that Representatives Frank,
Delahunt and Meehan be permitted to participate in today's
hearing. Without objection it's so ordered. The reason for
that, of course, is that they are from the region in question
and they are very knowledgeable about this issue. Since it
affects their constituency, we think it's appropriate for them
to be here.
I want to start off by repeating a few sentences from my
opening statement before last week's hearing. The U.S.
Department of Justice allowed a lying witness to send men to
death row. It stood by idly while innocent men spent decades
behind bars. It permitted informants to commit murder.
The U.S. Department of Justice and the FBI tipped off
killers so they could flee before they were caught. It
interfered with local investigations of drug dealing and arms
smuggling. Then when people went to the authorities with
evidence about murders, some of them ended up dead.
Now, those are strong accusations and the thing that is so
bad about it is it is true. We know of at least three or four
people who were innocent of murders that spent time in jail.
Mr. Salvati spent 30 years in jail for a crime he didn't
commit. All the way up to the head of the FBI, Mr. Hoover, knew
it.
He got the death penalty. Nobody said a word. And his
sentence was commuted to life imprisonment. Finally, after 30
years, thanks to his hard efforts, his wife and his lawyer, who
are here with us today, he was released. But 30 years is
something you can't give back.
There was a man in Rhode Island, we understand, who spent
18 years in prison for a crime he did not commit. It is just
unbelievable.
What I said was word for word of what I said last week. And
the Justice Department official sat in front of this committee
and they nodded their heads. They said they would cooperate
with the committee's investigation and then they hung tough and
said we could not see the documents relative to the
investigation that we subpoenaed.
We are in the middle of an elaborate shell game. The
Justice Department knows we are justified in wanting to see the
documents that we subpoenaed. The Justice Department knows that
we have good reason to review the documents. They know that if
we don't our investigation will be harmed. If they were doing
an investigation, they would want to review the same documents
themselves. They would insist on it, for the same reason we
have to insist on it.
I want to digress just a minute and say that I have this
horrible feeling in my gut that there are other people in
prison who are innocent of crimes like Mr. Salvati, who are
still there. A more horrible feeling is that some of those
people were put to death who were innocent and the Justice
Department knew it. The reason I am very concerned is because
we can't get the Justice Department to cooperate with us. They
won't let us see documents.
That means we are not going to be able to find out if there
are people who were in prison who are innocent or who died who
were innocent or who may still be there. We need to find out if
there are rogue FBI agents who were involved in these kinds of
atrocities who are still working for the Justice Department. We
need to find out who people were who were putting innocent
people in jail, who knew they were innocent, and make sure they
are held accountable.
That is the only way the criminal justice system in this
country can be cleaned up and make sure that these sorts of
things never happen again. This is America. This is not Soviet
Russia. This is not some Third World country. This is the
United States, the land of the free and the home of the brave.
We believe in fairness, equality and in justice. When we find
out innocent people are being sent to jail and the authorities
that put them in jail know they are innocent and even give them
the death penalty to protect mafia and underworld informants,
that in itself is more than criminal, in my opinion.
For decades Federal law enforcement did terrible things up
in New England and they were successful in covering it up. Now,
the Justice Department today, in 2002, continues to make it
hard to find out what happened. We are not going to tolerate
that. I want to emphasize two important points. First, the
Justice Department has never said that our review of these
documents would harm an ongoing investigation.
Second, the Justice Department has never said that our
review of these documents would compromise secret Grand Jury
information. The simple fact of the matter is, they don't want
us to see these documents for possibly a number of reasons,
some of which I just alluded to, and that's unacceptable.
I am not going to belabor the point about how unhappy I am
with the Justice Department. They just don't seem to care that
they are putting hurdles before the committee. Rest assured, we
will do everything we can to get to the bottom of what
happened. I just hope at some point the Attorney General and
the President who are getting really bad advice, will do the
right thing and tell their staffs to cooperate with the
Congress of the United States which has oversight
responsibilities.
Last year we held a hearing about the 1965 murder of Teddy
Deegan. Joe ``The Animal'' Barboza lied on the witness stand
and innocent men got the death penalty, including Mr. Salvati.
Only a Supreme Court ruling in another case prevented the death
penalty from being carried out. Otherwise, Mr. Salvati wouldn't
be here today.
Still two men died in prison. Another served 34 years
before he was cleared. Mr. Salvati served 30 years before he
was exonerated. The FBI knew Barboza was lying and they covered
it up.
Today, we are going to focus on a second chapter in the
life of Joe ``The Animal'' Barboza. By the mid-1960's, Barboza
was an accomplished killer. The Justice Department believed he
had murdered at least 26 people. Barboza was described by FBI
Director Hoover as ``a professional assassin responsible for
numerous homicides and acknowledged by all professional law
enforcement representatives in New England to be the most
dangerous individual known.'' And yet they were working with
this guy, putting innocent people in jail.
The FBI knew what kind of man Barboza was from microphone
surveillance of mob figures. For example, here is a story
passed along to FBI Director Hoover. He was told that Barboza
was going to kill a man by burning down the man's house. Either
the fire would do the job or he would shoot the man as he ran
from the burning building.
When Barboza was told the man's aged mother lived in the
house and would also be killed, Barboza said that it wasn't his
fault and he didn't care. After Barboza lied in the Deegan
murder prosecution the FBI created the Witness Protection
Program specifically for him. He was moved to Santa Rosa, CA.
Predictably enough, he killed again. For a while he got
away with the murder. Shortly after the murder in California
Barboza went back to Massachusetts. He got into another legal
problem and was put into Walpole Penitentiary. While he was
there he told a career criminal in the cell next to him about
the murder that he committed in California.
That inmate proceeded to tell people about the latest
murder, but the Justice Department did not care. It was OK for
Barboza to get away with murder, literally. In fact, the
Federal Government wanted to cover up Barboza's involvement in
the murder in California.
The man Barboza confided in, William Geraway, did write one
letter to the District Attorney in Santa Rosa. That is how he
finally got caught. Investigators were sent from California to
Massachusetts. In fact, Mr. Cameron who is here with us today
was one of those investigators. While the Justice Department
didn't seem to care much about the murder committed by their
star witness, the community of Santa Rosa cared.
Geraway provided the names of eyewitnesses, the location of
the body and other critical details. Santa Rosa prosecutors
were able to indict Joe ``The Animal'' Barboza in spite of the
opposition and obstruction of the Federal Government.
Today we will hear from three men who were involved in this
tragic episode. They are here to help us understand something
about what happened a long time ago. It's my understanding that
when my staff contacted today's witnesses, some said they had
been waiting for 30 years for someone to call about this. No
one ever had, so you probably weren't holding your breath any
more. But we did call, better late than never.
I just want to say that I am really grateful to all three
of you for being here. Sorry you had to wait so long. You have
been cooperative. You tried to help us as much as possible. You
dug up old documents, made time for our questions and
voluntarily came to Washington to testify. I really want to
thank you for that.
Marteen Miller was the most experienced public defender in
Santa Rosa, CA. In 1971, when California decided to prosecute
Joe ``The Animal'' Barboza for murder, the case was assigned to
Mr. Miller. You probably never thought you would have a client
like him, did you?
Mr. Miller. No, I did not, sir.
Mr. Burton. Ed Cameron was the investigator for the Sonoma
County District Attorney during the Barboza case. Mr. Cameron
was part of everything that was happening during the Barboza
investigation and trial. I know you had some health problems
recently and I appreciate your being here with us.
Tim Brown was a detective sergeant with the Sonoma County
Sheriff's Office. He also played a prominent role in the
Barboza murder investigation and he learned some important
facts from local FBI agents that the Boston FBI did not want
him to know. We appreciate you being here as well.
What they told us already was enough for me to call this
hearing. So far, we have learned that, one, the Federal
Government went to extraordinary lengths to help Barboza get
away with the California murder.
Two, all of tomorrow's witnesses, each an important Federal
Government official, testified on Barboza's behalf at his trial
for the California murder. Former FBI supervisor, Chuck Hiner,
who was interviewed, told us that he got a call from Dennis
Condon, one of the FBI agents up in Boston and he told us that
Denny said he would be a character witness for this murderer,
Barboza.
Barboza's defense lawyer was helped by the Federal
Government. The prosecutors were snubbed when they sought help.
The murder weapon was given to the FBI for analysis. It was
conveniently lost for a period of time. The FBI in Boston was
told that two of the witnesses against Barboza were going to be
assassinated. The FBI in Boston showed no interest in helping
to prevent the murders from being carried out. Fortunately,
they were not carried out.
Investigator Ed Cameron flew out to Boston to talk to the
Justice Department officials. The climate was so hostile he
stored his papers in a hotel safe. He later came to believe
that someone broke into his room and searched his briefcase.
Barboza ultimately took a plea bargain for the Wilson murder
because he was pretty sure he was going to be found guilty.
He served less than 4 years for the murder, even though he
had committed dozens of murders and killed while he was in the
Witness Protection Program.
Tapes were made of Barboza's conversations when he was in
jail in Santa Rosa. These tapes, which helped solve at least
one additional murder, were given to the FBI. The FBI either
lost these tapes or will not provide them to the committee.
Doug Ahlstrom, the FBI agent who was given these tapes, will
not cooperate with this committee.
Everyone on this committee understands that when you are
fighting organized crime you won't be working with angels.
Witnesses will often be untrustworthy. They may be killers
themselves. Well, we might have to work with the underworld,
but we don't have to sell our souls to the devil. We can't let
the FBI become complacent in putting innocent people in prison.
If we help a witness who has cooperated, we certainly can't
tolerate further murders. Nothing should ever give a government
informant or a witness a license to kill. That, however, is
what seems to have happened in the case of Joe ``The Animal''
Barboza and in the case of Vincent Flemmi and in the case of
Whitey Bulger as well. Mr. Bulger is still on the 10 most
wanted list.
In the case of Stevie Flemmi, that was the rifleman, wasn't
it? Stevie ``The Rifleman'' Flemmi who loved killing as well.
For 30 years the Justice Department turned a blind eye to
witnesses and informants who committed murder.
After he lied and sent Joe Salvati and others to prison for
life, the animal got dumped on an unsuspecting community in
California. He then killed someone else. From that time forward
the United States didn't owe him anything. It certainly didn't
owe him enough to help him get away with murder.
To come to any other conclusion would be to turn our back
on everything that this system we, this system of justice,
stands for. Congress recently gave the administration sweeping
new powers to deal with the terrorists who committed the
atrocities of September 11th. We were all deeply touched by
this tragedy.
A former lawyer on this committee, one of my former
lawyers, was in one of those planes and was killed. I don't
regret for a minute giving the government the powers that it
asked for after September 11th. But with power comes
responsibility. It has to be used wisely.
The Justice Department has the power to protect, but it
also has the power to destroy people's lives, people like Joe
Salvati. I think every person in a position to wield these new
powers standards should take a few hours to sit down and think
about what happened to Joe Salvati, his wife Marie and their
four children. Thirty years were taken out of all their lives.
They should take some time and reflect on today's testimony and
the things we are going to talk about tomorrow.
They should think about secrecy. They should consider the
words of Federal District Court Judge Wolfe that he used in
Boston when he forced the government to admit its treacherous
use of Whitey Bulger and Stevie Flemmi as informants.
Judge Wolfe quoted Lord Acton when he said, ``Everything
secret degenerates, even the administration of justice.''
Thirty years ago it would have been unthinkable for the
Federal Government to knowingly try to put men in the electric
chair for crimes they didn't commit, just as it's unthinkable
that the same thing could happen today. But it does happen. Our
laws are administered by human beings.
I hope everyone that follows these hearings understands
what we are doing today is not an exercise in academics. We
don't want there to ever be another case like Joe Salvati's.
I would just like to end by saying that the American people
and the media have only partially focused on this. We have a
lot of things that are going on right now that are very
important, the Enron Investigation. We have campaign finance
reform on the floor. We've got the war going on.
But in my opinion there's nothing more important than
making sure that Americans are treated fairly in the criminal
justice system. If any part of our government is putting
innocent people in jail for life or giving them the death
penalty knowing they are innocent, then my gosh, we've got to
correct that and we have to correct it quickly.
I think, in my opinion, that's just as important as the
terrorist problems we are facing right now because in fact it's
terrorism being fostered on American citizens who are innocent
and that's something we can't tolerate.
Mr. Waxman.
[The prepared statement of Hon. Dan Burton follows:]
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Mr. Waxman. Thank you very much, Mr. Chairman. I want to
start where you left off. There are a lot of things happening
in the world. I want to commend you for making sure that we
investigate any perversion of justice because what this country
has always stood for is fairness and justice.
We are today examining allegations of FBI and Justice
Department misconduct in their dealings with Joseph Barboza, a
violent criminal who turned State's evidence in several high
profile organized crime prosecutions in New England. I very
much welcome this hearing.
In the 1960's Joseph Barboza was well known to the FBI and
law enforcement authorities in Massachusetts. He worked as an
enforcer and killer for organized crime groups in New England.
To avoid a lengthy prison sentence, he decided to work with the
government in major Federal and State organized crime
prosecutions.
Mr. Barboza's testimony led to the conviction of some of
the most notorious mafia figures in New England at the time,
including a mafia boss, Raymond Patriarca, as well as two of
his top lieutenants and other members of the mafia.
The Federal and State prosecutors involved in the
prosecutions won great praise for their work. J. Edgar Hoover
gave personal commendations to the agents who helped develop
the cases. At the time, the convictions won by way of Joseph
Barboza were a mark of professional accomplishment, and they
established practices in the Boston office of the FBI that
lasted for decades.
Today the history of the Federal Government's dealings with
Joseph Barboza no longer stands as an achievement, but as an
egregious example of law enforcement abuses.
From this committee's investigation and materials uncovered
by the Justice Department Task Force investigating related
allegations, several things are clear. Mr. Barboza gave false
testimony in the trial of six defendants in 1968 for the murder
of Edward Deegan. This resulted in the wrongful conviction of
Joseph Salvati and possibly others.
The FBI agents who worked with Mr. Barboza in connection
with that State prosecution knew or should have known that his
testimony was false. Federal officials withheld crucial
exculpatory evidence in the Edward Deegan murder trial and
denied the defendants in that case a fair trial.
After the trial, the Justice Department relocated Mr.
Barboza to California where he killed again. During his trial
for murder in California, the Justice Department and the FBI
worked on Mr. Barboza's behalf to assist in his defense. With
the assistance of the Justice Department, Mr. Barboza made a
plea agreement that minimized the term of his imprisonment and
allowed him back on the streets.
I think all of us on this committee would agree that the
Justice Department and the FBI lost their way. No ends, not
even the laudable goal of eliminating organized crime, justify
these means.
Before Robert Mueller was confirmed as Director of the FBI,
he told a Senate committee that, ``The measure of an
institution is how it responds to its mistakes.'' He went on to
say that it was his highest priority to restore public
confidence in the FBI. I commend Mr. Mueller for his commitment
to this priority, but I do not understand why the Justice
Department and President Bush continue to impede this
committee's investigation into these matters by asserting
executive privilege over potentially important documents.
I urge President Bush to reverse course and to direct his
administration to cooperate fully with this committee. That's
the only way that we in the Congress and the general public can
understand this unfortunate episode.
Thank you, Mr. Chairman.
[The prepared statement of Hon. Henry A. Waxman follows:]
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Mr. Burton. Thank you, Mr. Waxman.
Mr. Horn, do you have an opening statement?
Mr. Horn. I don't want an opening statement. I would like
to get to the questions.
Mr. Burton. OK. Well, we will get to those very, very
quickly then.
Mr. Duncan.
Mr. Duncan. Mr. Chairman, let me say once again how much I
appreciate your courage and persistence in having hearings on
this matter. I will say once again, as I said last week, when
you opened up your statement last week and you repeated this
opening paragraph again today, I serve on three full committees
and six subcommittees. This is my 14th year in the Congress. I
have participated in probably several thousand committee and
subcommittee hearings during that time.
I said last week I have never heard a more shocking
statement made in any committee or subcommittee hearing that I
have ever participated in than your opening paragraph.
In case anybody here, in case they did not hear that or
their minds were some place else, I want to repeat that. The
chairman said, ``The U.S. Department of Justice allowed a lying
witness to send men to death row. They stood by idly while
innocent men spend decades behind bars. They permitted
informants to commit murder. It tipped off killers so they
could flee before they were caught. It interfered with local
investigations of drug dealing and arms smuggling.
``Then when people went to the Justice Department with
evidence about murders, some of them ended up dead.''
I can tell you this: I spent 7\1/2\ years as a criminal
court judge trying felony criminal cases. I mentioned that in
here before. The first year I ran for Congress, 302 out of 309
of the Knoxville City Police Department officers ran an ad
endorsing me for election. The Knox County Sheriff's Department
did the same thing. I think that I have supported law
enforcement as much as anybody possibly could.
But there's a reason why our founding fathers wanted most
of our law enforcement to be local and there's a reason why
most or many people who have thought about this do not want us
to create a Federal police state.
You know, our lowest paid law enforcement officials are our
local police officers. Next are the State and then our highest
paid law enforcement officials are the Federal officials. Many
of them never see a real criminal unless they are mugged on the
way to their cars after work.
We give the lowest pay to our people who are out there
fighting the street crime, the real crime that people want
fought. Then when we read about cases such as this Barboza case
that we are going to hear about today where the Special Agent
in Charge of the Boston office told J. Edgar Hoover, ``I
Barboza was a professional assassin responsible for numerous
homicides and acknowledged by all professional law enforcement
representatives in New England to be the most dangerous
individual known.''
Then we had Barboza taking a plea agreement for a murder in
California and serving less than 4 years, even though he had
committed dozens of murders, dozens of murders. His own lawyer
called him, ``one of the worse men on the face of the earth.''
When asked about the short prison term for Barboza of less than
4 years, his lawyer said that was pretty amazing. ``I figured
out that was how it worked when you had friends in the FBI.''
That's really sad, that when you have friends in the FBI
you can commit dozens of murders and get out with a sentence of
less than 4 years.
But a man who has done nothing at all and who is totally
innocent has to serve 30 years. I do not believe that the
people of this country feel that the Justice Department was set
up to protect murderers like Barboza. I am totally amazed at
what I am hearing at these hearings. I am more than amazed. I
am shocked. I am going to do what I can in my small way to call
attention to this.
I am going to go on C-Span and I am going to talk about
this. I am really embarrassed and ashamed and saddened that the
Justice Department is continuing to try to withhold documents
from the chairman and from this committee and try to continue
this cover-up. The whole thing is just shocking.
I appreciate your calling these hearings and letting me
participate. Thank you, Mr. Chairman.
[The prepared statement of Hon. John J. Duncan follows:]
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Mr. Burton. Thank you, Judge Duncan.
Mr. Tierney.
Mr. Tierney. Thank you, Mr. Chairman. With your permission
and that of the other members of the committee, I would like
unanimous consent to just put my remarks on the record so we
can get to the witnesses.
Mr. Burton. Without objection, it's so ordered.
[The prepared statement of Hon. John F. Tierney follows:]
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Mr. Burton. Mr. Delahunt.
Mr. Delahunt. I thank you, Mr. Chairman. Again, as I have
stated on previous occasions, let me commend you for moving
forward with this. Also, let me commend the witnesses. I am
sure they are here with some ambivalence. But what you are
doing today is very important.
We don't have a democracy if we have a justice system whose
integrity is at risk. What you experienced and what I
anticipate your testimony will reveal, your experience in
California in the late 1960's and early 1970's did not stop
then. It continued. It continued in the Boston area and at some
level I presume elsewhere all over this country, in the 1970's,
in the 1980's and the 1990's.
Again, a justice system that has integrity is so critical
to a healthy vibrant democracy. In the notice put out by the
committee, and maybe I could inquire through the chair to Mr.
Wilson, chief counsel. There was an indication that possibly a
representative of the Department of Justice would be here. If I
could inquire, is there a representative of the Department of
Justice here?
Mr. Burton. We'll have the department here for testimony
tomorrow. The other case you were talking about, which we might
as well bring up at this time was that one of the agents that
was involved in the case at hand couldn't be here, he said,
because of health problems.
We subpoenaed him and he will submit to a sworn deposition
next week, so we will get his testimony as well.
Mr. Delahunt. Again, the question I would pose to the
Department of Justice is many of these documents which we have
been provided with have names and possibly important
information redacted.
I think the Department of Justice has the obligation to
inform the committee of the rationale for the redaction. I
think that's important that we can further realize what we are
dealing with here. I think I do see a representative of the
Department of Justice in the audience. Maybe at some point in
time he can respond to that question. Who is responsible for
the redaction of some materials and names in the documents that
were presented and provided to the committee?
Mr. Burton. If he is not prepared for that today, we will
try to get that information tomorrow and you can ask that
question then.
Ms. Watson, did you have any comments?
Ms. Watson. I just want to say that I am pleased to be part
of this committee that continues to search for truth and
justice at a time when our integrity is being questioned and
there are tremendous scandals and cover-ups, I think we have to
do everything we can publicly to dig it out, bring it forward
and clear it up and let justice prevail.
I just came back from Cuba. This weekend I had maybe a 5 or
6 hour meeting with President Fidel Castro. When our
``Ambassador'' used a hard line, we repeated the language to
him and he said, well, America appears to be hypocritical and
gave us the names of five, as he called them, innocent Cubans
that are in Federal prisons. He pointed out that one of them
was in Lompoc in the State that I represent.
What can you say? You sit there in a chagrin fashion. We
must clear these issues up. We must bring them public. We must
reform. If we are going to be the leader of the free world, we
need to model a kind of behavior that says these kinds of
crimes and cover-ups cannot exist in America.
Thank you so much, Mr. Chairman.
Mr. Burton. The gentle lady yields back her time.
We will now hear testimony from our witnesses who are here
today. We want to thank you once again for coming all the way
from out in sunny California to be here. You all live in
southern California, don't you? You all have nice tans. You
look good. Oh, one of you is living in Nevada? Well, it is warm
there, too.
Mr. Marteen Miller, Mr. Edwin Cameron and Tim Brown, would
you please rise and be sworn?
[Witnesses sworn.]
Mr. Burton. I think we will start at my left. Mr. Miller,
would you like to make an opening statement?
STATEMENTS OF MARTEEN MILLER, FORMER PUBLIC DEFENDER; EDWIN
CAMERON, FORMER INVESTIGATOR; AND TIM BROWN, FORMER DETECTIVE
SERGEANT, SOMONA COUNTY SHERIFF'S OFFICE
Mr. Miller. No, sir. I will waive that.
Mr. Burton. OK. Well, you can answer questions.
Mr. Cameron, do you have an opening statement?
Mr. Cameron. No. I will waive that.
Mr. Burton. Just answer questions, OK.
Mr. Brown.
Mr. Brown. No, sir. I will waive that.
Mr. Burton. Very well, we will get on with the questions
then. I think this is one of the first panels we have ever had
that did not have an opening statement. That's why I wasn't
ready for the questions.
OK, we will proceed under the 5-minute rule today. Mr.
Cameron, you were the police officer and the investigator for
the Sonoma County District Attorney's office. If that correct?
Mr. Cameron. Yes, sir.
Mr. Burton. Is it fair to say that when you were
investigating a murder committed by Joseph Barboza the FBI and
the Justice Department did not help you very much? Is that
correct?
Mr. Cameron. It would be more than fair to say that we did
not get any cooperation from the Federal Government.
Mr. Burton. From the FBI?
Mr. Cameron. The FBI.
Mr. Burton. When you began your investigation, did you know
that Joe ``The Animal'' Barboza had been described to J. Edgar
Hoover as a professional assassin responsible for numerous
homicides and acknowledged by all professional law enforcement
to be the most dangerous individual known?
Mr. Cameron. When we originally got the letter telling us
that we had a body in California? No, I did not know that.
Mr. Burton. Mr. Brown, did you know when you started that
was how the FBI described Mr. Barboza?
Mr. Brown. No, sir, not at the time that it began.
Mr. Burton. Did you know that the FBI, Mr. Cameron,
believed that he committed at least 26 murders?
Mr. Cameron. Not when we began. Later I found that out.
Mr. Burton. So, at the beginning none of you knew that?
Mr. Cameron. No, sir.
Mr. Burton. Mr. Miller, when you started the case the
prosecution had two eyewitnesses, another witness who had all
the facts right, a body and a client with a very bloody past. I
think you told our lawyers that you thought it would take the
jury about 2 minutes and that the prosecution's case was a lead
pipe cinch. Do you recall telling us that?
Mr. Miller. That's substantially correct. I did not have
too much hope at the beginning of the trial, but sometimes
things go poorly for you and sometimes they break for you. I
think we rolled 7s and 11s in that case.
Mr. Burton. So, you thought that this was potentially a
death penalty case for Mr. Barboza?
Mr. Miller. It was a death penalty case, yes.
Mr. Burton. And you did not hold out much hope for him
because of the evidence involved.
Mr. Miller. Well, there is always hope, but I have to
address reality.
Mr. Burton. Mr. Brown, you were a detective sergeant with
the Sonoma County Sheriff's office. Is that right?
Mr. Brown. Yes, sir.
Mr. Burton. Joe Barboza was alleged to have killed someone
outside of Santa Rosa. We'll get into the specifics later, but
from our interview of you it sounds as though the Justice
Department didn't really want Barboza to go to prison for the
murder he committed. Is that right?
Mr. Brown. Yes. That's correct.
Mr. Burton. At the time of the Barboza prosecution, you
were the public defender, Mr. Miller?
Mr. Miller. Yes, sir.
Mr. Burton. And as the most experienced attorney in the
office, you handled all the murder cases, correct?
Mr. Miller. That's correct.
Mr. Burton. Did the FBI provide significant help in your
defenses of Barboza?
Mr. Miller. Well, they were very friendly to me when I went
back to Massachusetts as far as getting into Walpole and so on,
and telling me where to stay and so on, and offering any
assistance that they could give. But the evidence in the case,
realizing that they had an individual to whom Mr. Barboza had
made a statement about the case. They had two eyewitnesses to
the case. The body was found exactly where Mr. Geraway said it
would be found.
The trauma was exactly the way Mr. Geraway described it and
the witnesses that testified in that trial also said that they
witnessed the case. So, there was no real evidentiary help that
the FBI could have given me in relation to that case.
If I may add gratuitously, I think what you should be
looking at, I think, is what happened post-trial. In my 40
years as a criminal defenses lawyer, I have never seen a
situation where someone goes into prison with a second degree
murder charge getting out in as short a time as he did.
Obviously, I asked if they could appear, just for color's
sake. There was nothing in their testimony in relation to the
actual killing in the case. The FBI was held in such esteem
that if I could call them as a witness and have them say
substantially anything, relevant or not, that would be a point
in my favor.
Mr. Burton. Did they agree to appear as ``character
witnesses?''
Mr. Miller. Well, I wouldn't say character witness. My
apologies, Mr. Cameron, I know you weren't the attorney, but I
was surprised that there was an objection made by the
prosecution asking what the relevancy was. All I wanted to do
was place before the jury the color of the FBI in my favor, in
any way I could.
Mr. Burton. But the FBI did agree to testify in support of,
to a degree, Mr. Barboza?
Mr. Miller. Oh, well, sure, yes. May I continue just for a
moment?
Mr. Burton. Sure.
Mr. Miller. I think it may clear something. Maybe I was
naive, but I knew that the FBI did not want Mr. Barboza to get
the death penalty. They were absolutely fearful of that. My
rationale was they were afraid that if he got the death penalty
he would have nothing to lose, he would then recant his
testimony and the pay-off for the mafia would be remuneration
financial to his ex-wife and his children. So, maybe there's a
lot more to it, after your opening statement, and there
probably was. But at the time my feeling was that the FBI's
interest in this case was solely to keep Mr. Barboza from
recanting his testimony and I had no reason to believe other
than recanting against people that were actually guilty.
Mr. Burton. Well, we are trying our best to get to the
bottom of that. That's why we are working so hard to get the
documents in question.
Mr. Tierney.
Mr. Tierney. Thank you, Mr. Chairman. Let me broaden out
the question a little bit with the hope that you can give us
some help. Starting with you, Mr. Cameron, your recollection
back on this period of time, what would you tell us about your
observations as to whether or not any of the law enforcement
people involved, the Federal law enforcement people that were
involved in that case at that time did anything that could be
perceived to have obstructed the pursuit of justice in that
particular case.
Mr. Cameron. Our office, I called. It has been a number of
years ago. I am the one who said, ``Why has it taken 30 years
to get to this place?'' I waited that long. We called back for
background information. We got that information which was
publicly known at the time.
Whenever we asked them for any help, in our case to buck it
up, I would call back and make a request. I don't know how many
times I called, but I would say numerous. I never ever got a
return telephone call, once ever.
Mr. Tierney. Do you remember the names of any particular
agents that you were trying to reach at that time?
Mr. Cameron. When I would call? No. The two fellows we were
attempting to deal with were Condon and Rico.
Mr. Tierney. And that's the sum total of what you can tell
us about specifics with regard to possible obstructions or
interferences with your prosecution of that case?
Mr. Cameron. I can only tell you what happened to me. I
didn't like the feeling. You know, you are a cop long enough,
you get gut feelings. I had never had a gut feeling in a law
enforcement establishment before. When I got back to Boston on
one of the trips, I put my papers in the hotel safe and I fixed
my briefcase with a hair to see is somebody would open it. We
left, I came back and somebody had opened it.
Now you have to keep in mind that we are dealing with the
mafia and the FBI. I am not here to damn them because they are
brother law enforcement officers. I don't like being here
because I am going to do that, I think. But I don't know who
opened it, but something opened it.
Mr. Tierney. You had no idea who had access to your room?
Mr. Cameron. Nobody should have.
Mr. Tierney. Mr. Miller, some of the information that staff
put together before this indicated that at one time you believe
that one of the Federal officers, either Rico or Condon,
offered to testify and you were uncomfortable with the nature
of that testimony. You thought that they were perhaps not going
to be as straightforward as they should have?
Mr. Miller. No. That was probably my mistake in talking
with them. You know, in 40 years as a criminal defense lawyer,
you get involved with all spectrums, both sides of the fence.
What I was trying to get at is that it is kind of common
knowledge among criminal defense lawyers and even prosecutors
that sometimes when the Federal Bureau of Investigation witness
gets into trouble, I am not saying that he is going to perjure
himself, but he gets into trouble where his answers may not be
helpful to him and he will announce that he wants to go into
chambers and then will claim that to answer that question would
be a breach of national security. So, that was the import of
that. But not, there was no offer by any of the agents that I
called to proffer anything other than the truth.
Mr. Tierney. Was there any occasion when any of those
agents refused to testify about a particular matter, claiming
that it was an issue of either national security or----
Mr. Miller. Yes. I think it was on an insignificant point.
I think it was Mr. Hyland that asked, I think it was Mr.
Condon, asked him about the Deegan matter, some specifics, and
he declined to answer on the basis of advice from the Attorney
General.
Mr. Tierney. Mr. Miller, what was the plea that was finally
entered?
Mr. Burton. Excuse me, I want to make sure that we don't
miss anything on that point. There was some question about
national security or something that dealt with the law
enforcement at the FBI level regarding the Deegan murder that
they didn't want brought out in court?
Mr. Miller. That's correct. However, he did not use, the
transcript did not use the words ``national security'' but the
import would be, in further questioning that's what he would
have said. He said that he would not answer that question based
upon the advice of the attorney general.
Mr. Burton. Regarding the Deegan murder?
Mr. Miller. Any specifics in that regard.
Mr. Burton. I thank the gentlemen for yielding.
Mr. Tierney. Let me ask, have any of you gentlemen been
contacted by the Federal Bureau of Investigation or any of its
officers or agents prior to this hearing, since you were
subpoenaed or asked to come here to testify?
Mr. Miller. No, sir.
Mr. Cameron. No.
Mr. Tierney. Mr. Miller, I started to ask you just briefly,
what were the terms of the plea agreement that was finally
entered in that case in terms of disposition?
Mr. Miller. Well, we were along in the case, a few months
in the case. I felt that we were on top of the case, however
you never really know what can happen. It was a death penalty
case. I think the prosecution, especially Mr. Hyland, was very
experienced and saw what might be happening.
So, we had a discussion. I offered to plead Mr. Barboza to
second degree murder and I think it was an in determinant
sentence at that time, 5 years up and so on. He had parole to
do in Massachusetts. So, I figured he would do his parole time
and we would run it concurrent so he would have little if any
time to do in the California penal system.
Mr. Hyland agreed to that. Then, lo and behold, I guess he
doesn't do any time in Massachusetts and he comes to
California, and to be perfectly honest, was calling my office
from time to time from prison, just like he owned it, and was
released very early. So, in my personal opinion, if there was
any impropriety with the FBI it was only in terms of the amount
of time, but again----
Mr. Tierney. Let me ask you, what happened between the
beginning of the case when your assessment of the case was that
the prosecution had a very strong case and the client was in
trouble and that point in time when the prosecution was all
ready to dive into a second degree murder with short time in
California?
What were the circumstances during the trial that would
have, in your judgment as an attorney, led a seasoned
prosecutor to decide to fold?
Mr. Miller. Well, No. 1, I think Mr. Geraway became very
emotional on the stand because of a question I asked him and
lost a lot of credibility.
No. 2, there was two eye witnesses who made three separate
tape recording statements to the police or the investigators.
Naturally, they were probably afraid of Mr. Barboza, so they
were trying to protect themselves in the first tape. Then there
was the third tape where they said exactly what Mr. Geraway
said.
I think where the prosecution made an egregious error they
allowed me to cross-examine extensively on the first tape, then
on the second tape and then on the third tape. I think I cross-
examined the witnesses for over 3 or 4 days. So, the jury is
sitting there saying, what is going on there? How can they
change their stories and so on?
Mr. Tierney. And this was a seasoned prosecutor?
Mr. Miller. Well, I'll tell you that I was examining one of
the witnesses and one of the prosecutors objected and Mr.
Cameron objected on the basis that I was trying to proffer
something that wasn't even real.
Mr. Cameron, as I recall, tapped him on the shoulder and
gave him a copy of the police report.
Mr. Tierney. Do you recall that, Mr. Cameron?
Mr. Cameron. Yes, I do.
Mr. Tierney. Give me your impression of the qualifications
of the prosecutor during that trial if you would.
Mr. Cameron. I work for a lot of attorneys and I work for
him specifically. That was my duty. I wasn't assigned to
anybody else but the D.A. He is probably the finest, toughest
guy I ever worked for. You asked why we took the second degree.
I can tell you why we took the second degree. We didn't have as
witnesses a bus full of nuns that witnessed the killing. They
weren't the best in the world, two convicted murders or two
ladies.
But we did have a pretty dead bang capital murder case. We
were going to call the FBI. For some reason we found out that
they were going to testify for the defense. That happened and
we had a meeting shortly after they testified. I wanted a first
degree on Barboza but realistically our office knew that we
weren't going to get it.
You have to keep in mind this was in the early 1970's.
Everybody had nothing but the highest respect for the FBI.
Mr. Tierney. Can I take one or two more questions on this?
Thank you. When is it that you became aware that the FBI would
not testify for the prosecution but would testify for the
defense?
Mr. Cameron. During the trial. Sometime during the trial.
Mr. Tierney. Were you privy to the conversations between
the prosecutor and the agents?
Mr. Cameron. I'm not sure that we had more than a very
brief meeting yes, I was privy to it, but it was a very brief
conversation with them.
Mr. Tierney. What were your expectations of the testimony?
Mr. Cameron. Oh, we expected they were going to tell us
about the background of Barboza, what he was about, what kind
of a man he was. He had testified for them and we expected
that. We didn't expect him to say yeah, everything he had ever
said was truthful and righteous.
What effect that testimony had on us is that when we came
back and Mr. Fahey and myself and Mr. Hyland, the District
Attorney, thought we had better take a second degree murder
because they had injured us that badly with their testimony.
Mr. Tierney. In all of your experience before that trial
and since that trial, have you ever seen an occasion where the
FBI agents take the stand and serve essentially as character
witnesses to a man charged with murder.
Mr. Cameron. Absolutely not.
Mr. Tierney. Thank you. Thank you for your indulgence.
Mr. Burton. Mr. Horn.
Mr. Horn. Thank you, Mr. Chairman. We left off with Mr.
Burton. Mr. Miller, I might add, was public defender for Mr.
Barboza in the Clay Wilson murder trial. The question that was
really not quite put out was, the FBI, did they give you
significant help in your defense when you went back to Boston?
I think you told our staff that the FBI did buy you a
lobster dinner. Is that right, Mr. Miller?
Mr. Miller. That is true. That is correct.
Mr. Horn. Now, Mr. Cameron, you were the prosecution. You
were working. Did you get a lobster dinner out of the Justice
Department also?
Mr. Cameron. Yes.
Mr. Horn. Now were you getting the facts that you wanted
out of the FBI?
Mr. Cameron. No, sir. We got romanced but never kissed.
Mr. Horn. And it was a tough lobster, I take it.
Mr. Cameron. I remember it as being good. It didn't cost me
anything.
Mr. Horn. Now, do you feel they were just unhelpful or did
you press them on what you wanted and did they just say, ``We
can't do it'' or did they just stonewall you?
Mr. Cameron. They would tell us what was public knowledge
and that was about it. Of course, we did not know anything
about Mr. Salvati and the Deegan murder case at the time. I
could not figure out why we were not getting any help from
another law enforcement agency.
I can understand having a Witness Protection Program. I
understand the reason for it. Every good investigator that I
have ever met draws a line in the sand when dealing with
informants. I know that every good investigator that I have
ever met will help a petty thief if he is willing to give you
somebody better, up to, my line in the sand was I would never
help a child molester or a murderer.
I could never understand in this case why the FBI, the
epitome of everything that I thought was good about law
enforcement, crossed the line that I drew, my personal line in
the sand, which was helping those fellows, and they did.
Mr. Horn. Did you feel when you got back there, you are
saying they didn't really interfere, they just sort of didn't
help. Did any of them help and which were they? Were they one
or two or three members?
Mr. Cameron. The most help we got was--but I don't believe
he was an FBI agent, his name was Reagan. I think he was a
State policeman. I would say I got the majority of my
information from him, outside of that which was public
knowledge.
Mr. Horn. When you thought through what you needed in the
California prosecution, is that probably the most memorable
case you had or were there others?
Mr. Cameron. Oh no, that's why I remember it as clearly as
I do 30 years later.
Mr. Horn. Mr. Brown, is that Barboza case the most
memorable you ever had?
Mr. Brown. Yes, beyond a doubt.
Mr. Horn. Now, you had a murder victim in Sonoma County and
that was Clay Wilson. You had what you thought was the murder
weapon, isn't that right?
Mr. Brown. Yes, sir.
Mr. Horn. And it was a handgun?
Mr. Brown. Yes.
Mr. Horn. And who did you give the handgun to for testing?
Mr. Brown. We sent it to the FBI laboratory, with slugs, if
I might add. We dug up the slugs that we thought came from that
gun. It had the victim's hair on the slugs, both of them. That
was all sent to the FBI Crime Laboratory.
Mr. Horn. Well, what happened to your handgun that you sent
to the FBI laboratory?
Mr. Brown. It got lost.
Mr. Horn. Did they ever tell you what happened?
Mr. Brown. Yes. It was recovered somehow, I think just
before the trial.
Mr. Horn. So, what kind of evidence did they have before
the trial, even though it was later missing?
Mr. Brown. Well, we had the gun, but we were concerned with
the chain. I mean, how do you lose a gun in the laboratory? But
it all worked out. It worked out as the trial began.
Mr. Horn. I think it was pretty delicate. Did that play a
real--I mean they didn't say that this handgun was damaged or
anything and we can't determine that the slugs and everything
came off that handgun? What did they give you that you could
use and what didn't they give you?
Mr. Brown. You know, I can't tell you. I can't remember
that. I don't remember how it came about as far as--you know, I
don't remember.
Mr. Horn. Mr. Cameron, during your investigation you
traveled to Boston, as we saw. One of the purposes of the trip
was to get information about Barboza that would help your case.
Is that correct?
Mr. Cameron. Yes, sir.
Mr. Horn. Instead of getting information, you became
suspicious of the FBI, didn't you?
Mr. Cameron. I was uncomfortable with them, yes, sir.
Mr. Horn. In fact, you became so suspicious that you did
something with your briefcase?
Mr. Cameron. I did.
Mr. Horn. Tell us what you did with your briefcase.
Mr. Cameron. We talked about that a moment ago. I had this
terribly uncomfortable feeling, so when I left the hotel I took
a hair and wrapped it around the lock and left it there. I did
not lock it. I just closed the hasps.
When I returned, someone was in it.
Mr. Horn. And you put a hair set to show whether anyone
tampered with it, but when you returned later it was broken?
Mr. Cameron. It was broken.
Mr. Horn. Now, the Wilson murder was discovered because
William Geraway, a prisoner who was in the cell next to Barboza
wrote a letter to authorities saying Barboza confessed to the
murder. After Geraway's letter was received, your office
decided that you would go the Massachusetts. Is that correct?
Mr. Cameron. Yes, sir. When we got the letter, yes.
Mr. Horn. Once you were in Massachusetts, did you meet with
FBI Agent Dennis Condon?
Mr. Cameron. We did.
Mr. Horn. Was the meeting with Agent Condon unusual and how
so?
Mr. Cameron. No, I don't believe it was unusual at the
time. We had no reason to--we were asking them for help, what
was Barboza about? Is this in fact a good--you know before you
go out and talk to somebody in Walpole Prison, you want to find
out what is going on and can they help you? They filled us in
because we were completely ignorant about Joe Baron. We had no
knowledge of him at all.
Mr. Burton. Would the gentlemen yield?
Mr. Horn. Yes.
Mr. Burton. In the notes that we have from our legal staff,
that first meeting you had with Condon, you indicated that it
was kind of a strained meeting. Do you recall saying that?
Mr. Cameron. I felt tension. I felt that you would ask a
direct question and you get--that is what I meant by being
romanced without being kissed. I felt that they were giving us
exactly what they wanted to give us and not anything more. I
don't know why I felt that. It proved to be true, of course.
Maybe my 30 years of hindsight has reinforced my original
uneasy feeling.
Mr. Burton. Why don't you ask a couple more questions, Mr.
Horn?
Mr. Horn. In your experience now, and we have that already
for the record, were law enforcement agencies usually helpful
if one of their witnesses or informants were accused of a
crime, particularly murder?
So, what your feeling was, as the chairman says, you were
strained about this and maybe a little worried about what you
were going to get and you didn't seem to get it. Is that
correct?
Mr. Cameron. We just didn't know what we were going to get.
We got what we thought we wanted, but it was not an open and
free discussion, I think.
Mr. Horn. You didn't feel that it was cooperative with what
you wanted to have done, I take it.
Mr. Cameron. I didn't feel like we were getting the whole
story.
Mr. Horn. At one point, your office asked Agent Condon for
records. What happened? What was his response?
Mr. Cameron. To my knowledge, sir, we asked the FBI on more
than one occasions for records. We never received one that I
can remember.
Mr. Horn. Did you ask them and they said, ``Sorry, we can't
do it?''
Mr. Cameron. I would call and ask for records. I never so
much as got a return telephone call.
Mr. Burton. We will come back here in just a minute, Mr.
Horn.
Mr. Delahunt.
Mr. Delahunt. Mr. Cameron, don't feel like you are a member
of an exclusive club in terms of not receiving records. You
should be aware that this committee has requested records and
has not received them.
Let me direct this question to Mr. Cameron and Mr. Brown,
if you have knowledge. I think I just heard you say, Mr.
Cameron, that you had no knowledge of Joe Barboza.
Mr. Cameron. No, sir. We did not know he was in town. I did
not know who he was. I had no knowledge of him.
Mr. Delahunt. You didn't know that he had committed 26
murders, according to a senior FBI official?
Mr. Cameron. Prior to going back to Boston, when we got the
letter we had no idea we had a murderer of that ilk in Santa
Rosa, CA, no, sir.
Mr. Delahunt. You were never notified that you had one of
the most dangerous criminals of that generation living in your
community?
Mr. Cameron. We had no idea. Our law enforcement community
had no idea.
Mr. Delahunt. No one that you were aware of at the local or
State or county level in terms of law enforcement was ever
notified or ever informed regarding the fact that pursuant to a
deal, Mr. Barboza was relocated to your community?
Mr. Cameron. We had no idea.
Mr. Delahunt. Mr. Brown.
Mr. Brown. No official notification. I had seen him. I was
with Agent Ahlstrom on a few occasions and I was told by Agent
Ahlstrom, his words were he is taking care of him and
babysitting this man. I mean, we had no idea who he was, what
were the circumstances. That was before we had our homicide.
Mr. Delahunt. Before the homicide?
Mr. Brown. Yes, sir.
Mr. Delahunt. So, you received no notification whatsoever
from the Federal Government?
Mr. Brown. No.
Mr. Delahunt. Given your experience in local and State law
enforcement, if you had been notified, would you have conducted
any surveillance? Would you have taken any measures to monitor
the conduct of Mr. Barboza given what you now know in terms of
his background?
Mr. Cameron. I would hope so. We had a young man missing,
Clay Wilson, who had been missing for some time. We later found
out that they knew that he was hanging around this guy. As
backward a policeman as maybe I was in Santa Rosa, CA, I could
figure out that if we had a guy who killed 26 people in Boston
and we had a young man missing in California, I would think
that any cop worth his salt could at least put that piece of
the puzzle together.
Mr. Delahunt. You could have deduced that he had a
proclivity to murder?
Mr. Cameron. I would think that if one killed 26 people he
would.
Mr. Delahunt. Twenty-seven wouldn't be all that difficult.
Mr. Cameron. Not at all that difficult.
Mr. Delahunt. Mr. Brown.
Mr. Brown. At the time period you are after prior to our
knowledge of Barboza living in Santa Rosa he had been involved
in several things with our victim, Clay Wilson, at the time.
There was an ongoing activity as far as some bonds that were
stolen and weapons.
But at that time we had no knowledge of what was going on
with Barboza. But life was the same for him. He was continuing
his former course of conduct before he came under the Witness
Protection Program.
Mr. Delahunt. During that timeframe, did you have
conversation with Agent Ahlstrom of the FBI regarding Mr.
Barboza? You said he indicated to you that he was babysitting
him?
Mr. Brown. Yes, he told me 1 day, we were having lunch or
whatever, and he says, ``I'm taking care of this guy'' or I'm
babysitting him. It was just kind of a trivial little remark. I
never thought much of it. I mean I really didn't think anything
of it.
Mr. Delahunt. Was this prior to the Wilson homicide?
Mr. Brown. Yes, sir, yes.
Mr. Delahunt. Did he ever indicate to you that Mr. Barboza
was one of the most dangerous criminals in the annals of crime
in America?
Mr. Brown. No, he didn't. He never discussed it again. I
saw him. We were together. He talked to him and that was it. We
never discussed it. I was with Agent Ahlstrom on many
occasions, but it never came up.
Mr. Delahunt. In the aftermath of the Wilson homicide, did
you have any conversation with Agent Ahlstrom or did he offer
any opinion?
Mr. Brown. Yes. We were talking regularly, daily, after
things happened.
Mr. Delahunt. What did he say to you? Of course you had a
missing person, until you received the information from an
inmate in Walpole, not from any law enforcement source.
Mr. Brown. Yes. You know, I want to apologize. After we had
our body and the thing was rolling along, that is when we had
our daily meetings. Well, we would meet three or four times a
week in the meetings and just discuss what was going on. He
would assist me with certain things, up to a point.
Mr. Delahunt. Up to a point? Did he give you an opinion as
to the veracity of the Geraway statement regarding the
commission of the murder by Barboza?
Mr. Brown. OK, before we charged Barboza, are you after? Is
that the time period?
Mr. Delahunt. Right.
Mr. Brown. When things started rolling along, when Mr.
Cameron went back to Boston, things started moving, as far as
activity with Agent Ahlstrom. But I never really knew the
magnitude until we had our body. I mean, that's when things
blossomed and all this information came out.
Mr. Delahunt. That is when you came to a certain
realization.
Mr. Brown. Yes, that's when things started to happen.
Mr. Delahunt. But something was really funny here.
Mr. Brown. Yeah.
Mr. Burton. The gentleman's time has expired. Judge Duncan?
Mr. Duncan. Thank you very much, Mr. Chairman. Let me
apologize. I had to slip out and participate in a meeting on
the subcommittee on which I chair, so I didn't get to hear a
lot of the questions. But I understand I have been told some of
the questions that were asked.
Mr. Miller, let me ask you this: You spent 40 years as a
criminal defense lawyer. I can tell you that from my experience
I think that's about the most difficult kind of law that
anybody can practice.
The Barboza case was potentially a death penalty case, as I
understand it.
Mr. Miller. More than potentially. At the outset, as I said
before, I had little optimism but things just developed. May I
interject, because something was stated, I think Mr. Hyland,
the main prosecutor there, was probably the finest prosecutor
that I have ever known and gone against.
The assistant, Fahey, is not too bad either. So, I just
wanted to clear that up. Go ahead, sir.
Mr. Duncan. I can tell you that I have been involved in
several, in fact quite a few death penalty cases. I am just
wondering, I am told by the staff that these two FBI agents,
Rico and Condon and Edward Harrington who was the head of the
Organized Crime Task Force at the time that they all testified
for Barboza. Is that correct?
Mr. Miller. Well, they were subpoenaed by me, called by me
as witnesses and responded to my questions, yes, sir.
Mr. Duncan. Had you ever had a Justice Department attorney
testify for a client facing a murder charge before or an FBI
agent?
Mr. Miller. I am really being serious and thinking about
it. I have had lots and lots of murder cases. I don't think so,
but maybe. I do not recall, no, sir.
Mr. Duncan. I can tell you I handled several murder cases
also. It is very unusual.
Mr. Miller. Yes.
Mr. Duncan. That is an understatement or that is putting it
lightly.
Mr. Miller. I agree with you.
Mr. Duncan. I understand, Mr. Cameron, that you and Mr.
Brown both, separately, went to Massachusetts and met with the
FBI.
Mr. Cameron. Yes.
Mr. Duncan. Would you tell me, before you went there did
you think that you would get help or assistance or at least
cooperation from the FBI and would you tell me what your
reactions were, your feelings were after you had been there,
both of you?
Mr. Cameron. I certainly thought we were going to get help
and more background information, possibly to use it as
testimony in our trial, if we could get it in. We didn't get
any help or much help. Like I said, we got romanced but not
kissed.
Mr. Duncan. Mr. Brown.
Mr. Brown. There was an agent at the New Bedford field
office, I believe it was the New Bedford field office, that
assisted us when we brought Barboza back to California. I
didn't have any real contact with the FBI as far as Boston was
concerned, up to that point. But that agent, and I cannot
remember his name, he was more than cooperative. I mean that
man helped us. I mean I can't say enough about him positive.
But he did assist us in getting Barboza out of town.
Mr. Cameron. We did get assistance from a fellow by the
name of Reagan, but I believe he was a State policeman. He was
terrific.
Mr. Duncan. Did you get the impression, though, that the
FBI did not want Barboza to be prosecuted to the fullest extent
possible?
Mr. Cameron. At the initial contact, no, I can't say that I
got that impression. I got the impression that something was
definitely wrong. You know, it is a little odd to get a letter
from a prisoner, convicted murderer, saying, I want to freely
tell you about a conversation another murderer had with him.
So, I thought that was strange and I wondered what he was
supposedly going to get out of it. You know, it is a give and
take.
Mr. Duncan. Let me ask you this, Mr. Brown: I understand
that you had an Agent Ahlstrom of the Santa Rose FBI office who
did tell you at some point that Barboza had killed 26 people.
Is that correct?
Mr. Brown. Yes, sir. That's correct.
Mr. Duncan. Did that shock you or surprise you at the time?
Mr. Brown. Well, yeah. I mean it is a shock. He is living
there. In fact at one time I lived about three blocks from
where his house was. His children went to school. I mean he
lived a regular life on appearances. Yes, it was a shock. In
fact I would like to say on behalf of Agent Ahlstrom I probably
learned more through him about things than I did from any other
source. The day he told me that, I mean it knocked my socks
off.
I thought, ``How come we didn't know?'' Then you
understand, well, it is a bigger picture than what we had.
Mr. Duncan. My time is up. Let me just ask one last
question: How do you gentlemen feel now knowing that this man
who committed 26 murders, I mean it is almost mind boggling,
was protected or assisted and a man who was innocent was kept
in prison for 30 years? Does that not shock you? I mean where
is the justice?
Mr. Brown. You know, it is a shocking thing, but I think
what you men are doing here is going to iron things out a
little bit. As far as that man doing prison time, we had no
knowledge of that, but Barboza's lifestyle and his history of
things and moving to our area, back in the 1970's it was a
podunk place, nice place to live, nice place to raise your
family and they brought him there, which is probably a good
thing for them, but to put him in our environment that we had
there, it is an atrocity, with no knowledge of it.
If they would have sat with him and monitored him, maybe
this would not have happened.
Mr. Duncan. Mr. Cameron, as a man who spent your life in
law enforcement, how do you feel about what you are hearing
here today and about this whole situation?
Mr. Cameron. I was privileged to watch Mr. Salvati testify
before this is committee. I think that's a terrible, terrible
thing. How we in law enforcement could let that happen is
atrocious.
Mr. Burton. The gentleman's time has expired. Mr. Clay.
Mr. Clay. Mr. Chairman, I prefer to ask unanimous consent
to put an opening statement into the record.
Mr. Burton. Without objection, it is so ordered.
[The prepared statement of Hon. Wm. Lacy Clay follows:]
[GRAPHIC] [TIFF OMITTED] T8662.013
[GRAPHIC] [TIFF OMITTED] T8662.014
Mr. Clay. Thank you, Mr. Chairman. Mr. Chairman, I just sit
here in utter amazement listening to your testimony. I really
want to hear more. So for that reason I would like to yield the
balance of my time to Mr. Delahunt, if I may. Thank you.
Mr. Delahunt. I thank the gentleman for yielding. When we
talk about the sharing of information, if we pause and reflect
for a moment, and I think you responded, Mr. Cameron, that if
you had this information maybe Clay Wilson would have been
alive today. Mr. Brown. Mr. Wilson.
Mr. Cameron. He might have been, however, I don't know that
we would have stayed with him 24 hours a day. The sheriff's
office certainly couldn't have and our office, the District
Attorney's Investigator staff couldn't have. However, we could
have put two and two together after Clay Wilson came up
missing. Had we known Mr. Barboza had done these things? Of
course we would have put it together then. I hope we would
have.
Mr. Delahunt. Well, there's the possibility of prevention.
That's the point. You know, again, various States now are, for
example, passing legislation creating a registry of sexual
offenders. Would you concur that it is appropriate when
witnesses, particularly those with history of violent behavior
are relocated to localities and venues where they have the
potential to wreck violence within a community, that it is
incumbent upon the Federal Government to notify local and State
authorities?
Mr. Cameron. Well, I totally recognize there has to be a
Witness Protection Program of some kind. I totally understand
it. What I don't understand and what I haven't understood for
30 years is why in the world wasn't someone in local law
enforcement told that we have a guy who killed 26 people living
amongst our citizens?
Mr. Delahunt. That's exactly my point. I don't think it is
something that has to receive publicity, but clearly at a
minimum, local and State law enforcement, public safety
officials have to be notified. Mr. Brown.
Mr. Brown. I would like to go back to that podunk
statement. I am sorry I said that. I didn't mean that in a
derogatory term. It was a very nice place to live. But anyway,
we had a system set up within a department as far as kind of a
need to know basis. I certainly concur, somebody needs to know
when you have a subject like Mr. Barboza living in your
neighborhood.
But it was again on the basis of need to know, certain
people. And if you needed to know it. But he didn't go around
telling everybody about it. But like if the District Attorneys'
office, somebody should have had knowledge because when things
start to occur, hopefully before you have a homicide, if
there's activity around this person you may be able to not have
a homicide.
Mr. Delahunt. The question of information sharing, now I
think it was you, Mr. Cameron, that stated to the committee
that when you requested documents that they were not forth
coming. The phone didn't ring.
Mr. Cameron. No, sir. I can truthfully say I never saw----
Mr. Delahunt. Let me just pose this to all three of you,
including you, Mr. Miller, that have an excellent reputation as
a trial lawyer. Documents can be utilized to impeach the
credibility of witnesses. I don't know if, you know, whether
you had any intention to put Barboza on the stand.
Mr. Miller. I absolutely did have the intention, which I
did.
Mr. Delahunt. Well, I can assure you that if you had access
to the documents in the possession of this committee,
particularly as it relates to Salvati and others, you would
have had an abundance of information to impeach the credibility
of Mr. Barboza, if you happened to be the prosecutor in this
case.
So, again, the need for the Federal Bureau of Investigation
and the Department of Justice to share this information is
important at many different levels in terms of the ability to
proceed and successfully prosecute those that are guilty and at
the same time hopefully to secure the safety of those members
of a community where an individual who is described by the
Federal Bureau of Investigation as one of the most dangerous
criminals ever. This is what happens when we don't provide that
information. I see my time is up. But I look forward to an
additional round.
Mr. Burton. Mrs. Morella.
Mrs. Morella. Thank you, Mr. Chairman. Thank you for your
perseverance on this very important issue.
I guess I will start off with Mr. Miller. Mr. Miller, as
Barboza's attorney, you also went to Massachusetts, correct?
Mr. Miller. That is correct.
Mrs. Morella. You seem to have had a different experience
in Boston than Mr. Cameron. You had lots of contact with the
FBI and they were very friendly, correct?
Mr. Miller. Correct.
Mrs. Morella. They took you out to dinner every night on
their expense account, didn't they?
Mr. Miller. I assume every night, yes.
Mrs. Morella. You said that Agent Condon took you under his
wing. How did he do that?
Mr. Miller. Well, I think he was the one I was in contact
with more, more friendly with. He showed me around Boston. I
think he even told me where Walpole was and the best way to get
there.
Mrs. Morella. He told you all the ``ins'' and ``outs?''
Mr. Miller. I didn't find that unusual.
Mrs. Morella. I wondered, why did agents Condon and Rico
say they were willing to help Barboza on the California murder
charge?
Mr. Miller. Well, again, you weren't here at the time I
expressed how naive I probably was, but they were afraid, in my
mind, that if Mr. Barboza was given the death penalty that he
would recant his testimony and therefore guilty men would be
released from incarceration.
So, that was my take. So, they were going to help me
ethically, I thought, in any way they could, not necessarily to
prevent him going to prison, but to prevent his getting the
ultimate punishment, which is the death penalty because he
would have absolutely nothing to lose in that situation.
Mrs. Morella. I had heard that you had said that agents
Rico and Condon told you that when somebody did them a favor
they would not back down or wouldn't back off?
Mr. Miller. Well, if I understand your question that if
someone does a favor for them in relation to having some bad
guy convicted, that they would take care of them in the witness
program. Is that what you meant?
Mrs. Morella. Kind of.
Mr. Miller. And further, the better that they treat the
ones on the Witness Protection Program, the more incentive
someone would have to become an informant and then take
advantage of the Witness Protection Program. They made that
very clear.
Mrs. Morella. Mr. Brown, you got word that your two eye-
witnesses might be the targets of an assassination attempt,
didn't you?
Mr. Brown. Yes ma'am.
Mrs. Morella. When you flew to Boston, you sought help from
the FBI so that you could prevent your witnesses from being
murdered; is that correct?
Mr. Brown. No. That happened way after my trips to Boston.
It happened after we had Barboza back in California. We were
told by a man that was in our jail in Sonoma County that people
were being sent from the East Coast to Santa Rosa to shoot our
witnesses. Is that what you are after?
Mrs. Morella. Yes. Did you seek help from the FBI?
Mr. Brown. OK. So, normally we would help, you know. So, we
contacted the FBI agent, Ahlstrom. Things were in the mill but
time was going and after several days time is moving and we did
not get any help.
Mrs. Morella. So, you got no help, really, which is kind of
what I am getting at.
Mr. Brown. Yes, that is right.
Mr. Burton. Would the gentlelady yield?
Mrs. Morella. Did this surprise you? Yes, I will certainly
yield.
Mr. Burton. What I would like to know about that is the
person in jail that told you there were going to be hit men out
there, assassins to kill two witnesses, was he credible?
Mr. Brown. It was Geraway who started this whole thing with
his letter to the District Attorney's Office.
Mr. Burton. He is the one that said that?
Mr. Brown. Yes, sir.
Mr. Burton. And he had heard that from whom? From Barboza?
Mr. Brown. No. We kept them apart.
Mr. Burton. Where did he get that information?
Mr. Brown. You know, I don't know. I don't know how it
happened. I really don't. I can't remember.
Mr. Burton. But it was Geraway that told you that there was
going to be a hit?
Mr. Brown. I am 90 percent sure it was Geraway.
Mr. Burton. I thank the gentlelady.
Mrs. Morella. Picking up on that, Barboza's murder of
Wilson surfaced in a letter sent by William Geraway, a prisoner
who said that Barboza confessed to him in jail back in
Massachusetts. After you received Geraway's letter, did Agent
Ahlstrom start coming around more and asking questions, sir?
Mr. Brown. Mr. Cameron, his office, received the letter,
and yes, that's true. As things started to develop, I saw Agent
Ahlstrom regularly.
Mrs. Morella. Did Agent Ahlstrom seem concerned by
Geraway's letter?
Mr. Brown. You know, I imagine he was concerned, you know.
But I don't mean this in a derogatory way, but the FBI, they
get other information. I mean their information source, which
is their job, and Agent Ahlstrom was gathering. That is how I
took it at the time.
Mrs. Morella. So he was concerned about the letter?
Mr. Brown. Yes.
Mr. Burton. May I interrupt once more?
Mrs. Morella. Yes, Mr. Chairman.
Mr. Burton. In your testimony at the deposition before this
committee, you said that Ahlstrom told you that he was bothered
by the fact that Harrington, Rico and Condon were coming out to
help Barboza.
Mr. Brown. He said that.
Mr. Burton. Now, in what context did he say that? I mean,
did he say, ``We have FBI agents and U.S. Attorneys coming out
to support this guy.'' Why are they doing that? How did he say
it?
Mr. Brown. Agent Ahlstrom was concerned that those
individuals would be helping the defense. We were sitting in
the office talking. My opinion of his statement, he is
concerned that his agency was going to assist the man we were
trying to prosecute. And that's how I took it.
Mr. Burton. Was he vehement or what did he say, ``I am
ticked off about this?''
Mr. Brown. He was unhappy.
Mr. Burton. Stronger language than that?
Mr. Brown. Well, he wasn't swearing, but he was unhappy. He
was unhappy.
Mr. Burton. The gentlelady.
Mrs. Morella. Maybe I have time for one more question, Mr.
Chairman. Actually, once Barboza was in custody in California
awaiting trial, did you begin meeting with Agent Ahlstrom
regularly to discuss Barboza?
Mr. Brown. Yes.
Mrs. Morella. I wanted to note that the committee staff
interviewed Chuck Hiner who was the agent in charge of the--
said that wasn't normal procedure and it was very unusual.
Mr. Brown. I agree with that. Agent Ahlstrom felt the same
way and Chuck Hiner was kind of the connection to the East
Coast through Agent Ahlstrom and to myself. That's how it kind
of worked. When we needed something, I would talk to Doug
Ahlstrom. He would talk to Chuck Hiner. The next day Ahlstrom
would get back to me.
Mrs. Morella. My time has expired. Thank you.
Mr. Burton. I thank the gentlelady.
Mr. Miller. Mr. Chairman, could we take about a 1-minute
break, a lavatory break?
Mr. Burton. If I could make one statement, then we will
take the break. OK?
Mr. Miller. OK.
Mr. Burton. I want to make sure that this point that was
made by the gentlelady is really emblazoned on people's minds
because here you had the agent in charge of the San Francisco
FBI, Mr. Hiner, saying that it was not normal procedure for the
FBI to allow two FBI agents from the East Coast to come out and
testify on behalf of a man who committed 26 murders, and it was
very unusual.
So, this had to be something that was cleared at a higher
up level and they couldn't figure out why it was. Ahlstrom felt
the same way.
We will take about a 5-minute break and then we will be
right back and go to Mr. Tierney.
[Recess.]
Mr. Burton. The committee will come to order again.
You see, Mr. Miller, we really don't dislike trial
attorneys. We want to help you guys out. In fact, Mr. Tierney,
I think you were a trial attorney; weren't you?
Mr. Tierney. I was.
Mr. Burton. So, we have a couple of you here in the room.
Mr. Tierney.
Mr. Tierney. Thank you, Mr. Chairman.
Mr. Miller, to your knowledge at that time, were you of the
opinion that your client had something on the FBI that he was
holding or harboring some information that would make them more
favorably disposed to being kind to him than otherwise might be
the case?
Mr. Miller. That wasn't posed in that manner, but Mr.
Wilson, some months ago in our dialog brought that up. I forget
what I said, something innocuous probably, but then thinking
about this over and over, I do recall no specificity, but I do
recall, ``They owe me and they had better.'' At the time I
didn't give too much thought about that, but now with the
revelations forthcoming, that was probably what he had in mind,
I guess.
Mr. Tierney. Your best recollection was that Barboza told
you that ``They owe me, they'd better?''
Mr. Miller. Yes. He slammed his hand down and said, ``They
owe me and they better do it.''
I thought, well, they owe him for his testimony he gave
against Patriarca and----
Mr. Burton. If the gentleman will yield very briefly--but
he did say ``They'd better.''
Mr. Miller. Yes.
Mr. Burton. So, that was an implied threat. He was speaking
rhetorically, but he was saying----
Mr. Miller. Well, if you dealt with him the way I did over
those months, I mean he was doing that every minute. This was a
joke. I assume that my investigator, a very young man, would be
just talking about the case and he would reach over, very
strong, and grab him and lift him up in the air, and say,
``Another word out of you and you are finished.''
I mean that is the kind of a guy he was. He was banging
things around. Obviously, he didn't mean that, you know, he was
just playing with this investigator.
Mr. Tierney. Whose idea was it to have Mr. Harrington and
Mr. Rico and Mr. Condon testify on behalf of Mr. Barboza?
Mr. Miller. I am guilty.
Mr. Tierney. Now, did you just get that on your own or how
did you come to that conclusion? It was probably not something
you did a lot of in the course of your defense work is ask for
one of the high ranking members of the Justice Department to
testify on behalf of a murder client.
Mr. Miller. Well, as a trial lawyer, you understand, you do
everything you possibly can for the benefit of your client. I
though it was beneficial to call the FBI man who had nothing
relevant to testify to but just the color of their office.
That's what I wanted and I think I got.
Mr. Tierney. The reason you went to that is that you were
aware from your client that he had a relationship with him?
Mr. Miller. Of course, I knew he was in the witness
program.
Mr. Tierney. It wasn't your client who said to you I'll
talk to them and they said they will testify or something of
that nature?
Mr. Miller. No.
Mr. Tierney. Now, Mr. Cameron, at some point you see in the
exhibits, exhibit 2 in particular, where the prosecutor in the
case sent the letter both to Attorney General Mitchell and to
Mr. Hoover of the FBI explaining that this was unusual. He
thought it would be a house divided if the testimony of those
three individuals came in, and then asking if the individual,
Mr. Harrington in particular, was going to testify, you would
give the courtesy to the prosecutor of at least first speaking
to him.
Do you know whether or not that courtesy was ever extended?
[Exhibit 2 follows:]
[GRAPHIC] [TIFF OMITTED] T8662.015
[GRAPHIC] [TIFF OMITTED] T8662.016
Mr. Cameron. I don't believe it was. Mr. Harrington, now
this is 30 years ago and as best that I recall, through the
Sheriff's Department, through Tim or the jail staff, our office
was informed that Mr. Harrington was there to see Mr. Barboza
before coming to see us.
I recall a very brief meeting with Ken Hyland, our District
Attorney, and myself and Ron Fahey, one of the senior deputies,
in our office with Mr. Harrington. My boss was unhappy, to say
the least. He went to the jail to visit Mr. Barboza prior to
coming to see us. It was very brief.
Mr. Tierney. Your meeting with Mr. Harrington?
Mr. Cameron. Mr. Harrington, yes.
Mr. Tierney. Mr. Miller, when you were meeting with Mr.
Harrington, Mr. Rico and Mr. Condon prior to their testimony,
in preparation for it, was their attitude one of reluctance
that they had been subpoenaed to testify or were they fully
cooperative? Were they eager? How would you categorize it?
Mr. Miller. Fully cooperative, yes.
Mr. Tierney. Did they offer suggestions to you as to what
their testimony might be?
Mr. Miller. No. I was responsible for that.
Mr. Tierney. Now, you agree, don't you, that nothing they
had to say weighed at all on the issue of mafia or organized
crime involvement with Mr. Barboza?
Mr. Miller. Yes, I think it did. What I was saying is that
their testimony did not relate to any of the evidence in issue
at the trial.
Mr. Tierney. No connection at all?
Mr. Miller. None.
Mr. Tierney. My time is up. Thank you.
Mr. Burton. The gentleman from Ohio.
Mr. LaTourette. Thank you, Mr. Chairman. I apologize for
not being here a little earlier. We are dealing with an issue
of pipeline safety in another room.
Gentlemen, welcome. Mr. Brown, I would like to ask you
first, while it is our understanding that while Mr. Barboza was
in custody, you learned that he was getting visits from a
bookie, I think, by the name of Sharliss. Do you remember that?
Mr. Brown. Yes.
Mr. LaTourette. And when you learned Mr. Sharliss'
background, it is my understanding that you then began taping
the visits between the bookmaker and Mr. Barboza. Is that also
correct?
Mr. Brown. Yes, sir.
Mr. LaTourette. And as a result of information received
from the tape recordings that you made, it is my understanding
that a homicide in Las Vegas may have been cleared as a result
of the information that you developed?
Mr. Brown. Yes, sir.
Mr. LaTourette. Do you recall anything about the specifics
of that murder?
Mr. Brown. Evidently, somebody was buried by a real estate
sign. I don't remember the exact location. I remember the real
estate sign.
Mr. LaTourette. OK. I would assume that during the course
of these meetings between Sharliss and Barboza that from time
to time there would be information that would be developed or
you could hear information that you thought might have been of
interest to the FBI?
Mr. Brown. Yes, sir.
Mr. LaTourette. And did you do anything relative to
cooperating with the FBI?
Mr. Brown. Yes.
Mr. LaTourette. Can you tell us what you did?
Mr. Brown. I would make cassettes. This was a reel-to-reel,
slow reel. When things were pertinent, I would make a cassette
of it and give it to Agent Ahlstrom.
Mr. LaTourette. Let me ask you and Mr. Miller. As I
understand it, Mr. Barboza came to California in February 1972.
Then in March 1972 Mr. Harrington, who was the agent in charge
of the Organized Crime Task Force, if I understand his position
correctly, came to visit Mr. Barboza. Do you remember that
meeting occurred?
Mr. Brown. My memory has been refreshed and now I do
remember that.
Mr. LaTourette. Were you, as Mr. Barboza's lawyer, asked to
attend that meeting?
Mr. Brown. No, I don't believe I was.
Mr. LaTourette. Mr. Cameron, are you aware whether or not
the District Attorney or representatives of the District
Attorney's office was invited to attend that meeting with Mr.
Barboza or Mr. Harrington?
Mr. Cameron. No, we were not.
Mr. LaTourette. Following Mr. Harrington's visit, however,
I do understand that the prosecuting attorney's office did
request some information of Mr. Harrington or a meeting with
Mr. Harrington to determine what he was doing. Do you recall
that, Mr. Cameron?
Mr. Cameron. I do.
Mr. LaTourette. Was there such a meeting with Mr.
Harrington?
Mr. Cameron. There was a meeting in our office in the
District Attorney's office. I believe Mr. Hyland, the District
Attorney, Ron Fahey, myself and Mr. Harrington were there. It
was a very brief meeting. The District Attorney wanted to know
what he was doing there, what he could do to help our case, if
anything.
Frankly, my boss was upset that a member of the Justice
Department was--I won't use ``interfering,'' but at least not
giving us information as to why he was there and what he was
doing and could he help us.
Mr. LaTourette. Well, I think that leads to not only the
Harrington visit, but the fact that these fellows were going to
testify in the upcoming trial. When Mr. Tierney was asking you
questions, Mr. Miller, a little earlier, one of you made the
comment that they didn't know anything about this homicide,
this Clay Wilson homicide. To your knowledge, did they, Mr.
Miller? They had no facts relative to the homicide that you
were defending, did they?
Mr. Miller. Well, I am sure they had the communication from
Mr. Geraway to Mr. Hyland, the District Attorney. You are
talking about prior to the trial?
Mr. LaTourette. Right.
Mr. Miller. Yes, I am sure that they had that information
and probably in my discussions we talked about it.
Mr. LaTourette. But they didn't have any relative--I mean
they weren't eyewitnesses. They hadn't discovered any. I think
you made the observation that the only purpose that you could
see for their testimony was to show the flag or use the
prestige of their office to show that FBI agents were
testifying on behalf of Mr. Barboza.
Mr. Miller. That's correct.
Mr. LaTourette. Mr. Tierney mentioned two letters. I would
just like to have those put up on the screens as exhibit 2 and
3 and, Mr. Chairman, ask that they be admitted into the record
of this hearing.
It is my understanding that exhibits 2 and 3 are the
letters from Mr. Hyland that Mr. Tierney was asking about
wherein he basically was asking for the courtesy that if Mr.
Harrington is going to testify, would you be kind enough to
give us the courtesy of having them come in and chatting with
us first. Is that what exhibits 2 and 3 are?
I think, Mr. Cameron, I will ask you that since they appear
to be letters generated from the office of the District
Attorney.
[Exhibits 2 and 3 follow:]
[GRAPHIC] [TIFF OMITTED] T8662.015
[GRAPHIC] [TIFF OMITTED] T8662.016
[GRAPHIC] [TIFF OMITTED] T8662.017
Mr. Cameron. I am sorry, sir. I was reading.
Mr. LaTourette. Exhibits 2 and 3, I just want for record
purposes to make sure that exhibits 2 and 3 are the letters
that Mr. Tierney was discussing that were sent by Mr. Hyland,
his District Attorney, expressing his displeasure to both the
Attorney General and also to Mr. Hoover, I believe, indicating
that, one, we are not really happy about this, and two, if Mr.
Harrington is going to testify, could you at least give us
common courtesy if you are not going to give us usual courtesy.
Is that what Exhibits 2 and 3 are?
Mr. Cameron. Yes.
Mr. LaTourette. Mr. Miller, I apologize again for not being
here at the beginning. But did your trial practice back when
this trial was occurring, had you represented murder cases
before?
Mr. Miller. Yes, sir, I have.
Mr. LaTourette. Had you ever seen a situation where a
Federal law enforcement agent had ever come in and testified on
behalf of one of your defendants?
Mr. Miller. No.
Mr. LaTourette. From chatting with other members of the
defenses bar, was this something that you had ever even heard
of in the course of your practice?
Mr. Miller. I don't know if it came up, but I am sure it
was something that they probably never heard of.
Mr. LaTourette. And Mr. Cameron, are you aware, based upon
your experience, of a Federal law enforcement agent coming into
court and testifying on behalf of a defendant charged with
capital murder?
Mr. Cameron. In my experience, no, sir.
Mr. LaTourette. Mr. Chairman, I will stop now and wait for
the next round.
Mr. Burton. The gentleman yields back his time.
Let me just ask one quick question here. Mr. Miller, were
you asked to participate in that meeting with your client and
Mr. Harrington when he came to visit him?
Mr. Miller. Not that I recall, sir.
Mr. Burton. Were you aware that he was going to meet with
him? I mean you are his defense attorney. And here is a guy who
was a strike force attorney, prosecuting attorney, up in Boston
who came in to see your client who you are defending on a
murder charge. He talked to him and you didn't even know about
it?
Mr. Miller. I don't know for sure, but if I had to bet on
it, I don't think I was aware of it.
Mr. Burton. I mean you would have wanted to be there,
wouldn't you? I mean, if somebody of that stature was coming in
to talk to your client?
Mr. Miller. Yes.
Mr. Burton. I guess one could draw the conclusion that they
wanted this meeting to be just between the two of them?
Mr. Miller. Well, that would just be a guess.
Mr. Burton. Let us put it this way. If there's a person of
that stature who is involved in prosecution of criminals and he
comes to see a defendant in a murder case, isn't it a little
bit unusual that he would meet privately with the defendant?
Mr. Miller. I would go out of my mind, except they were
so--I thought they were so----
Mr. Burton. Close?
Mr. Miller. I thought they were so intent upon his not
getting the death penalty that they wouldn't do anything to
hurt me. Otherwise, I would be afraid that they would turn
against me.
Mr. Burton. But one could draw the conclusion that they
wanted their meeting to be between the two of them.
Mr. Miller. Yes, but again, he may well have asked my
permission. It has been over 30 years ago and I just don't
recall.
Mr. Burton. OK.
Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman. I have a question
for Mr. Cameron, but before I do, well, let me put it in the
form of a question. You made reference to a Massachusetts State
Police Officer. Can you repeat his name for the record?
Mr. Cameron. His name is Reagan.
Mr. Delahunt. Could it be John Reagan?
Mr. Cameron. Reagan, Yes, sir.
Mr. Delahunt. At that time he would have been a lieutenant
on the State Police?
Mr. Cameron. He was a lieutenant in the State Police as I
remember.
Mr. Delahunt. How would you describe his cooperation with
your efforts?
Mr. Cameron. I am positive, I got more information from him
in whatever time--I am pretty sure he drove us to Walpole State
Prison. Whatever time it takes to go from Boston to Walpole, I
remember it is kind of a journey, we got more information on
that ride from him than we did from the FBI.
Mr. Delahunt. In full disclosure, Mr. Chairman, I want to
make it a matter of record that Major John Reagan worked with
me in a variety of investigations during my tenure as District
Attorney. He is someone whom I have very fond memories. He was
a dear friend and someone whom I consider the ultimate
professional and whose integrity is beyond any reproach. I just
want to make that a matter of record.
I have never met Mr. Cameron before except for today. I am
not surprised that Major John Reagan of the Massachusetts State
Police provided you whatever information he could regarding
this particular matter.
Mr. Cameron. He was a good fellow.
Mr. Delahunt. Post the plea, if I could just direct your
attention for a moment to your involvement or the Office of the
District Attorney's involvement or the police involvement. Were
you ever notified in terms of transfers in terms of where Mr.
Barboza was incarcerated?
Mr. Cameron. I inquired when he first went in our State
system that I would like to know where he went. I lost him.
Subsequently, I think he was in Montana, in their State system,
I believe, but under Federal control.
Mr. Delahunt. So, he was in a State system. You and Mr.
Brown were intimately involved in the investigation of the
Wilson homicide. You requested to be informed, but somehow he
got lost.
Mr. Cameron. To me, yes, sir, he was lost.
Mr. Delahunt. Are you aware or were you ever invited or are
you aware of anybody in California that received an invitation
to testify at a parole hearing for Mr. Barboza?
Mr. Cameron. I was not, sir.
Mr. Delahunt. You were not invited to testify?
Mr. Cameron. No, I think I would be one of the last people
to be invited.
Mr. Delahunt. They didn't want you there, is that what you
are saying, Mr. Cameron?
Mr. Cameron. I would think that I would not be on his list
of witnesses.
Mr. Delahunt. Mr. Brown, were you ever invited to testify
at a parole hearing?
Mr. Brown. No, sir.
Mr. Delahunt. In retrospect, I presume that you would have
been in opposition to allowing or in opposition to having Mr.
Barboza paroled back into the community?
Mr. Brown. Yes, sir.
Mr. Delahunt. Do you have any information relative to the
parole hearing that must have been held for Mr. Barboza?
Mr. Brown. No, no, nothing. As Mr. Cameron said, he
disappeared in the system.
Mr. Delahunt. He disappeared in the system and then he
disappeared out to the street.
Mr. Brown. That's about right.
Mr. Delahunt. Are you, Mr. Brown and Mr. Cameron aware of
the fact that Mr. Salvati sought a parole for some 20 years and
was denied a parole for 20 years?
Mr. Cameron. I am aware of it now because I watched Mr.
Salvati's testimony.
Mr. Delahunt. Right.
Mr. Cameron. I just met him this morning and I knew nothing
about his situation at all until last night. Just for the
record, Mr. Salvati sought parole through his attorney, Mr.
Garo, I believe commencing in the late 1970's. We don't really
understand yet, given all of the evidence that has been made
available to this committee of an exculpatory nature why Mr.
Salvati was never paroled, but I would hope, Mr. Chairman, that
we would find out the answers to those particular questions.
Mr. Burton. You may rest assured, we are going to do our
best to find out.
Mr. Delahunt. Thank you, Mr. Chairman.
Mr. Miller, you seem to have continuing contact with Mr.
Barboza post his plea.
Mr. Miller. Very little. He did appear at the courthouse
after his release. We had a conversation in the judge's
chambers. After that I recall little or no contact, but my
investigator, I think, had contact with him after his release
from prison.
Mr. Delahunt. Did you represent him at a parole hearing?
Mr. Miller. No, sir. I wasn't even aware of any parole
hearing until--I didn't even know if there was a parole hearing
and are you sure there was one?
Mr. Delahunt. So, we don't even know if there was a parole
hearing.
Mr. Miller. That's correct. I am not aware of one.
Mr. Delahunt. But the sentence that was imposed, if you can
help us in terms of California law, was 5 to life?
Mr. Miller. Yes.
Mr. Delahunt. And yet he served some 4 years.
Mr. Miller. I think it was less than that.
Mr. Delahunt. Less than 4 years. Mr. Cameron, do you know
how much time Mr. Barboza served?
Mr. Cameron. No, but I believe it was less than 4 years.
Mr. Delahunt. Less than 4 years? We don't know if there was
a parole hearing. You, as his counsel, were never notified as
to whether there was a parole hearing.
Mr. Miller. Not that I recall. I was surprised when I found
out he was out of custody.
Mr. Cameron. I am sure if our office had been notified we
would have opposed it.
Mr. Delahunt. You would have opposed it?
Mr. Cameron. Absolutely.
Mr. Burton. We will come back to the gentleman in just a
few minutes.
Mr. Miller, you know, I know you are a great defenses
attorney and I know you have great experience, but it surprises
me that Mr. Harrington came out there and you didn't know about
it or didn't get a chance to go. You weren't notified about any
potential parole hearing. You kind of probably found out he was
on the street when he came up to you and started talking to you
in the courtroom.
You don't think any of that seems a little odd? It's funny,
don't you think? A little odd, not funny.
Mr. Miller. Yes. I think he was sent to Deer Park, MT,
wasn't he, immediately?
Mr. Cameron. He first went into the State system and I
don't remember how long he was in the California penal system,
but he went to Montana shortly after he went into the
California system.
Mr. Miller. So, he came out of our system into, I think
they call it Deer Park, and then he was taken back to
California. The guard found marijuana in his shoe and he broke,
he said, ``That just is my luck.'' He hit a guard one with a
left hook and he would break his jaw.
So, there he was back in isolation at San Quentin. I talked
to him and he was manacled. The next thing I knew----
Mr. Burton. He was out.
Mr. Miller. No, he was out in some camp somewhere. He was
making long distance calls to my office.
Mr. Burton. So, it was not a major security penitentiary?
Mr. Miller. He went from Deer Park to San Quentin to
Folsom. At Folsom they had him in a cage, almost. Then, the
next thing I know he was up around Sonora at one of those----
Mr. Burton. Nicer ones, yes.
Mr. LaTourette, I will yield my time to you.
Mr. LaTourette. Thank you, Mr. Chairman.
Gentlemen, if I could direct your attention back to the
exhibit book for just a second. My task here is to sort of make
a record, so this might be boring, but we will do it as best we
can.
Exhibits 4 and 5, if you could take a look at those, Mr.
Miller, they are unsigned, undated letters from the Attorney
General of the United States that set out the conditions under
which Mr. Rico and Mr. Condon may testify on Mr. Barboza's
behalf. If one of you can just tell me that is what they are,
then I can ask you some questions.
[Exhibits 4 and 5 follow:]
[GRAPHIC] [TIFF OMITTED] T8662.018
[GRAPHIC] [TIFF OMITTED] T8662.019
[GRAPHIC] [TIFF OMITTED] T8662.020
[GRAPHIC] [TIFF OMITTED] T8662.021
Mr. Miller. You said 4 and 5?
Mr. LaTourette. Yes, sir.
Mr. Miller. I thought that the authorization came with a
different exhibit. Oh, yes, 5, yes, instructions to Dennis
Condon as to what he could and could not testify to.
Mr. LaTourette. Right. And 4, I think is the one to Mr.
Rico.
Mr. Miller. Yes.
Mr. LaTourette. OK. Were you satisfied, Mr. Miller, despite
the fact that these restrictions, and they are pretty tight
restrictions, had been placed on Mr. Condon and Mr. Rico, that
despite those restrictions that there testimony would still be
valuable to Mr. Barboza?
Mr. Miller. Yes.
Mr. LaTourette. And can you tell us why?
Mr. Miller. Again, not necessarily as to the content of
their testimony or the relevance of their testimony, but
rather, the color of their office as it would shine upon me and
my client.
As we have said, it is very unusual to have any law
enforcement officer testify as a subpoenaed witness for the
prosecution, especially, if they are FBI and especially if
there are three of them.
Mr. LaTourette. The unusual part that occurred a little bit
later that I want to talk to you about, but it is my
understanding that when Mr. Condon, Agent Condon, was on the
stand the prosecutor asked him whether or not he was aware that
Barboza was negotiating with the mafia to recant his testimony.
Do you remember him asking that question?
Mr. Miller. Not exactly, but I do recall--is that when he
declined to answer?
Mr. LaTourette. I think it is. Is that your memory, also?
Mr. Miller. Yes, something along those lines.
Mr. LaTourette. It is my understanding that he cited the
instructions he received from the Attorney General and
basically indicated he could not answer the question.
Mr. Miller. That's correct.
Mr. LaTourette. The question I have of you, though, is that
despite these instructions that sort of limited the amount of
information they gave on direct testimony, are you aware that
there was a fellow by the name of Lawrence Hughes? His name
surfaced in this case, Lawrence Hughes.
Mr. Miller. Only when my memory was refreshed, yes.
Mr. LaTourette. OK. And Lawrence Hughes, if I understand
Mr. Hughes' involvement, it is that he offered--and Mr.
Cameron, maybe you can help us--he offered to testify against
Mr. Barboza relative to not only some stolen bonds that he had
received, but also the fact that allegedly Mr. Barboza
confessed the Wilson murder to him.
Is that your recollection, Mr. Cameron?
Mr. Cameron. Yes, sir. It was during the trial itself that
he popped up like a mushroom to help our case. I suspected at
the time, I suspect now, that he was sent out by organized
crime to help our case.
Mr. LaTourette. And Mr. Miller, does that fit with your
refreshed recollection that Mr. Hughes appeared in the middle
of the case and he was going to offer some rather----
Mr. Miller. I have no independent recollection of that at
all, sir.
Mr. LaTourette. OK. Well, let me then direct you, Mr.
Cameron, if I can, to exhibit No. 6. Exhibit No. 6 appears to
be a request to the FBI Director to let Condon, despite the
restrictions placed upon his testimony in exhibits 4 and 5, but
a request to the FBI Director to let Mr. Condon come back and
impeach the prosecution witness, Hughes.
Am I reading that document correctly?
[Exhibit 6 follows:]
[GRAPHIC] [TIFF OMITTED] T8662.022
[GRAPHIC] [TIFF OMITTED] T8662.023
[GRAPHIC] [TIFF OMITTED] T8662.024
[GRAPHIC] [TIFF OMITTED] T8662.025
Mr. Cameron. I have never seen this before, sir.
Mr. LaTourette. OK. Could you just take a minute to study
it? I think it speaks for the fact that we now have the Justice
Department and the FBI not only offering up agents to testify
in the defense case in chief, but when a troublesome witness
like Mr. Hughes shows up, they now go above and beyond and say
that, you know what, these FBI guys can come back and call Mr.
Hughes a liar, further damaging the prosecution's case. So, if
you could just take a minute to study that, if any of you have
any insight or recollection, either refreshed or otherwise that
you can add for the record, I would appreciate it.
The information specifically that I think that I'm
referring to is at the bottom of page 3 of exhibit 6. Maybe we
can go there.
Mr. Miller. And your question, sir?
Mr. LaTourette. My question is, do you recall any of this
occurring. That is that at the time I think you said, Mr.
Cameron, that Mr. Hughes popped up like a mushroom to give the
prosecution a hand.
All I am asking is: Is it a fair characterization of
exhibit 6, specifically the third page, that a request was
being made to Mr. Hoover to let Mr. Condon come back and
impeach the prosecution witness, Mr. Hughes. That's the way, at
least, it appears to me.
Mr. Cameron. That's the way it appears to me, sir.
Mr. LaTourette. Mr. Miller, is that a fair reading by you,
also?
Mr. Miller. Yes, sir.
Mr. LaTourette. Mr. Miller, last, also on the same page of
exhibit 6 in the second full paragraph, and let me just read
that. In the second full paragraph it says that ``in an
interview with Condon and Rico and Strike Force Attorney
Harrington by the Public Defender, he, the Public Defender,
requests the results of the FBI interview in September of
Hughes and the identity of the agent who conducted the
interview.''
That paragraph, to me, makes it sound as if you wanted to
see a copy of the interview of Mr. Hughes by FBI agents. Do you
ever recall making such a request?
Mr. Cameron. No, but I am sure if I was aware of it, I
would have asked for that, yes, which under California law I
would have been entitled to.
Mr. LaTourette. OK. Then, last, at the bottom of the last
page of exhibit 6, which I think is page 4, it says, ``Defense
is also calling John Doyle, the Chief Investigator, Suffolk
County District Attorney's Office, Boston, Massachusetts.''
Did you ever have any contact with John Doyle and the
Suffolk County District Attorney's Office?
Mr. Miller. Not that I am aware, nor am I aware of my
investigator being in touch with him, but he might have been.
Mr. LaTourette. Since you don't remember any dealings with
Mr. Doyle, do you know whether the idea to potentially call Mr.
Doyle as a witness to help your case or at least to be
identified came from the FBI or the Justice Department?
Mr. Miller. I have no idea, sir.
Mr. LaTourette. Thank you very much. I yield back.
Mr. Burton. Boy, I will tell you, you read that exhibit 6,
and I hope everybody in the media gets a chance to read that.
It is really something. Those FBI agents were given authority
by the Attorney General to impeach Mr. Hughes' testimony. I
just can't believe that.
Mr. Tierney.
Mr. Tierney. Mr. Chairman, at this time, all I wanted to do
was to make sure that through unanimous consent that all of the
exhibits in the exhibit book be admitted into the record.
Mr. Burton. Without objection, it is so ordered.
Mr. Tierney. The only remaining question that I have was
for Mr. Brown. Was that gun ever found?
Mr. Brown. Yes.
Mr. Tierney. In time for the trial?
Mr. Brown. Yes.
Mr. Tierney. With respect to Agent Ahlstrom, do you know
whether or not he ever registered formally his disappointment
over the Justice Department and FBI's assistance in his trial?
Mr. Miller. You know, I don't know that he did, no.
Mr. Tierney. Thank you. I will yield to Mr. Delahunt if he
has any questions.
Mr. Delahunt. Yes, if I may, Mr. Chairman, Mr. Miller, did
Barboza ever discuss with you the arrangements that he had made
relative to his cooperation with the Federal Government that
led to his arrival in Santa Rosa, CA?
Mr. Miller. He liked to brag a lot. He said he was the
first witness of this type and he was placed in--where do they
keep all the gold in this country? Fort Knox. That he was held
there under the witness protection and from there I think he
was placed somewhere else and eventually to Santa Rosa, CA.
He indicated that he was being rewarded for his testimony
against, I guess it is Raymond Patriarca and he mentioned a few
other names.
Mr. Delahunt. Did he tell you the benefits and the reward
that he received for his testimony, albeit his perjured
testimony in the case of Mr. Salvati and others?
Mr. Miller. Well, he went from Baron to Bentley.
Mr. Delahunt. Then he was given training to become a cook?
Mr. Miller. He was given with the Marine Cooks and
Stewards, a union hall, yes, he was given employment there.
Mr. Delahunt. And presumably, he was provided a stipend of
sorts?
Mr. Miller. Oh, sure.
Mr. Delahunt. He was given money, taxpayers' money.
Mr. Miller. I'm sure.
Mr. Delahunt. And he was relocated, his travel expenses
were paid to start all over again in Santa Rosa, CA?
Mr. Miller. Correct.
Mr. Delahunt. And out in Santa Rosa, he begins a new phase
of his criminal career. Did he ever explain that the benefits
that he was to receive as a result of his negotiations with the
Federal Government were to continue ad infinitum?
Mr. Miller. Only for his protection, but not for any
illegality, I'm sure. That wasn't discussed, but that--he had
done the Government a tremendous favor, and in response they
were going to take care of him, as long as he behaved himself,
the rest of his life.
Mr. Delahunt. So in behaving yourself, you're charged with
a first degree capital case, that's behaving yourself?
Mr. Miller. Well, no, as it turned out, evidently he did
not behave himself in a manner in which they had hoped.
Mr. Delahunt. But the benefits continued. Mr. Cameron.
Mr. Cameron. That was always my question, where does it
stop.
Mr. Delahunt. Where does it end.
Mr. Cameron. If a man commits murder, in my book, it should
stop there.
Mr. Delahunt. This was after the deal was done, though, Mr.
Cameron, wasn't it?
Mr. Cameron. This was after the deal was done. He committed
another murder and the Federal Government was still supporting
him, as best I understand it.
Mr. Delahunt. And the benefits just kept accruing?
Mr. Cameron. As I understand it, sir, yes, sir.
Mr. Delahunt. Would you, Mr. Brown, or you, Mr. Cameron, be
disturbed if you discovered that this career criminal of great
notoriety was granted parole and early release because of the
intervention of the Federal Government? How would you feel
about that, Mr. Brown?
Mr. Brown. Well, it's a terrible, terrible system, if
that's how it's going to operate.
Mr. Delahunt. Mr. Cameron, how would you feel about it?
Mr. Cameron. It's a travesty of justice to have that
happen, and to have had that happen.
Mr. Delahunt. What do you suspect, Mr. Miller? You've been
around a while?
Mr. Miller. Well, if the allegations by the chairman are
true, it's saddening and heartbreaking and a travesty.
Mr. Delahunt. Well, we do know that he ended up on the
street, didn't he? That's one fact we know. We don't know if
there was a parole hearing, we don't know how he ended up back
in the street. Mr. Salvati, he couldn't get paroled, and he was
sitting there for 30 some odd years, innocent. And you received
no cooperation. Is that what justice is about in America?
Mr. Cameron. Not in my book.
Mr. Delahunt. Not in mine, either. I yield, Mr. Chairman.
Mr. Burton. We have a vote on the floor. We've got about 11
minutes until the vote closes. So let me just go through a
couple of things here real quickly.
I think this is something that's very interesting. John
Doyle was the chief investigator for the Suffolk County
District Attorney's office in Boston. He had been in touch with
this Hughes, and he was also going to be there, was asked if he
would, he indicated he would go out there and impeach Hughes as
a witness.
Mr. Miller, I don't know if you were asked this question or
not, I may have missed it. Did the Suffolk County District
Attorney's office ever talk to you about him coming out and
testifying on behalf of----
Mr. Miller. I have no recollection of that. However, my
investigator may have been in touch with him. I have no
recollection.
Mr. Burton. So Harrington from the U.S. Attorney's Office
and the Suffolk County District Attorneys' Office both were
willing to come out and testify on behalf of Mr. Barboza if he
had wanted it to?
Mr. Miller. I was aware of the FBI, yes. But not aware of
any other person.
Mr. Burton. Now, Judge Harrington, Rico and Condon all
testified on the same day, is that right?
Mr. Miller. Probably. I'm not sure.
Mr. Burton. Did Judge Harrington or Rico or Condon have any
knowledge of the murder or the circumstances surrounding the
murder of Clay Wilson, to your knowledge?
Mr. Miller. Only after it happened. And that was probably
from the communication from Mr. Geraway to Mr. Hyland.
Mr. Burton. According to the transcript, Judge Harrington
and Rico and Condon were all basically asked the same
questions. The questions concerned Barboza's cooperation with
the Federal Government and the Mafia attempts to kill Barboza.
There were no questions about the murder of Clay Wilson. As
Barboza's attorney, what was more important to you, what Mr.
Harrington and the agents were saying about Barboza, the fact
that a senior Justice Department official and two FBI agents
were there testifying on his behalf? He just wanted them there
because of their credibility as an agency?
Mr. Miller. That's all.
Mr. Burton. OK. Did you ever wonder why they sent out three
instead of one?
Mr. Miller. Again, I just thought they were deathly afraid
that he would get the death penalty and that he would recant
his testimony and that's the last thing they wanted.
Mr. Burton. Did they ever say that to you?
Mr. Miller. No, that's just something that I assumed.
Mr. Burton. That you surmised?
Mr. Miller. Yes.
Mr. Burton. OK. Since their testimony had nothing to do
with the murder, you thought that they were just going to be
able to influence them by their presence and saying he was
cooperating?
Mr. Miller. That's correct.
Mr. Burton. Was there a discussion with the prosector, Mr.
Hyland, about whether to be more aggressive with Mr. Harrington
and the FBI agents, do you know, Mr. Cameron or Mr. Brown? Was
there any discussion saying he should be----
Mr. Cameron. Was there a discussion in our office?
Mr. Burton. Yes, regarding cross examination, that they
should be more aggressive, either in cross examination or in
asking the Justice Department not to allow these people to come
out.
Mr. Cameron. We talked about that during the trial, whether
or not to really tear into them. And we all came to the
conclusion that it wasn't going to do us any good, it was going
to hurt us even more, because they weren't going to say
anything that was going to help us. By that time, they had
taken our first degree murder case, and I truly believe with
our testimony, they had colored it to the point where we were
not going to get a first degree murder.
Mr. Burton. That's why the plea bargain took place?
Mr. Cameron. Yes, sir.
Mr. Burton. We have a few more questions we'd like to ask
you. Would you mind waiting until we come back, probably about
15 minutes, then we'll wind this thing up?
We'll recess for about 15 minutes for the vote, then we'll
be right back. Thank you.
[Recess.]
Mr. LaTourette [assuming Chair]. If we could ask the
witnesses to come back to the table, we'll try and conclude
things in an expeditious fashion. And we appreciate your
indulgence. As you may know, the House is taking up the rather
non-controversial issue of campaign finance reform today. So
we're called to come back and forth once in a while.
Mr. Delahunt, for 5 minutes.
Mr. Delahunt. Thank you, Mr. Chairman, and I'll be brief.
Let me just conclude by thanking Mr. Miller and Mr. Cameron and
Mr. Brown. I mean, you have really provided your Nation a
service today, you truly have. I know maybe it doesn't seem
like that, but it is. It's been extremely informative.
The chairman, Mr. Burton, announced at the beginning of the
hearing today that there would be in lieu of an appearance by
former Special Agent Condon a deposition to be conducted in
Massachusetts, in Boston, presumably. And I have consulted with
my friend, Mr. LaTourette from Ohio. We share a State
prosecutorial experience. I'm pleased to say, and I'm making
this a matter of record so it will box him in, that he and I
will also attend and participate with chief counsel, Mr.
Wilson, in that particular deposition. And through you, Mr.
LaTourette, to Mr. Wilson.
I think it's very important, particularly given what we
heard today in terms of post-plea, if you will, and what
happened in terms of parole, release back into the community,
that in stark contrast to what occurred in the case of Mr.
Salvati up in Massachusetts, that this committee attempt to
work an agreement with a number of individuals that may have
information regarding the reason that Mr. Salvati was not
granted a parole permit, that we do make an effort also to
depose those individuals that might have that information.
I think it's important. I think there's a theme here that
we're talking about. And again, the lack of sharing of this
information with State and local officials.
With that, I'll conclude, Mr. Chairman and reiterate my
thanks to Mr. Miller, Mr. Cameron and Mr. Brown.
Mr. LaTourette. I thank you very much, Mr. Delahunt. I look
forward to traveling to Boston with you. I'm thinking seafood
and Patriots memorabilia might make it go down a little bit
better. [Laughter.]
Gentlemen, I know that you've been patient all day. I just
have about six or seven more questions, and our counsel, Mr.
Wilson, may have a few questions. Then we'll be concluded.
I'm always reminded, I'm 47 years old and I can remember
when I was growing up there was a show on television called the
FBI, Efram Zimbalist, Jr. was in it. I think many of us thought
that J. Edgar Hoover and Efram Zimbalist, Jr. were infallible
and they were solving all the world's problems.
I know where we left off when the chairman recessed the
hearing to go for the votes. It's my understanding, Mr.
Cameron, that there may have been a discussion between, in the
District Attorney's office, whether Mr. Hyland, the District
Attorney, should be more aggressive or not with the FBI agents
who were coming to testify. Do you recall a discussion of that?
Mr. Cameron. That was during the trial, yes, sir.
Mr. LaTourette. Can you relate for us now, some 30 years
later, what was Mr. Hyland's concern, what was he thinking and
what he eventually did relative to whether or not to be
aggressive with these FBI guys who were really ruining his
case?
Mr. Cameron. Well, our concern was that, we thought we had
a pretty good capital murder case. And we didn't have the best
witnesses in the world, but we had witnesses, and we had
evidence. And we had testimony from people who, and all of
that. And we got to the end and we're having FBI agents
suddenly appear as almost character witnesses. We had a long
talk about what we should do with them as far as attacking
them.
And you have to keep in mind, this is in the early 1970's.
The FBI, as far as we were concerned, was pretty sacrosanct.
And our feeling was that if they really started getting into it
and we knew what was going to happen, they were going to say,
we can't go into that because of this, that and the other
thing. Plus they had damaged our case to the point we didn't
think the jury was going to convict on a first degree murder
case.
So we thought we'd better take what we got offered.
Mr. LaTourette. As I understand it, eventually the decision
was made, because of the esteem that the FBI was held in, to
not go after them, as you might another negative witness to
your case. Is that your recollection?
Mr. Cameron. I'm sorry sir, I didn't hear you.
Mr. LaTourette. The decision was made by Mr. Hyland, if I
understand it right, to not go after them, as it were----
Mr. Cameron. That's right.
Mr. LaTourette [continuing]. When they were on the stand,
because of who they were and who they represented.
Mr. Cameron. We felt that we were only going to get damaged
more.
Mr. LaTourette. Sure. Mr. Miller, do you have an opinion as
to--I know this was resolved by plea, but do you have an
opinion as to whether or not these agents, Mr. Harrington had
an impact on the jury?
Mr. Miller. No question they had an impact, sir.
Mr. LaTourette. And it's my understanding that 2 days after
they hit the stand is when the State decided to come forward,
and you made the offer of plea, did you not, Mr. Miller?
Mr. Miller. That's correct.
Mr. LaTourette. And if I understood you earlier, Mr.
Cameron, it was your feeling that the agent's testimony and
Harrington's testimony had put you in a position where you were
now willing to listen to, or the prosecution was now willing to
listen to a plea of something other than capital murder, is
that right?
Mr. Cameron. Absolutely.
Mr. LaTourette. And is that pretty much how that all
happened, after they testified you guys decided, we'd better
take this and get out of Dodge?
Mr. Cameron. We were willing and eager to go ahead with the
capital case up until that time and then, you're right, it was
time to get out of Dodge.
Mr. LaTourette. Aside from the agent's testimony, was
anything else going wrong with your case? In other words, up
until the fact that they hit the stand and you decided, this is
not good for us, was there anything else negative going on in
your case that caused the district attorney to come off of a
capital murder charge?
Mr. Cameron. We were always concerned when Mr. Miller was
defending a murder. He's a good attorney and he did a good job
in this case. Did I personally think that we still had a
capital case? Yes, sir. Did our office think that? Yes, sir.
Mr. LaTourette. What was it then that caused you to accept
his offer of plea to a lesser charge?
Mr. Cameron. It wasn't anything but having the FBI there,
and the color of their authority painting him an honest person
and truthful and what-not.
Mr. LaTourette. Mr. Miller, I mentioned earlier a fellow by
the name of Ted Sharliss, I think, who was a bookmaker and
gambler, if I understand it, from back east. Were you aware of
him, Mr. Sharliss, first of all?
Mr. Miller. Yes, sir. I was aware of him before the trial,
and I was aware of his involvement in the execution of Mr.
Barboza after.
Mr. LaTourette. But were you aware back in the early 1970's
that Mr. Sharliss was an informant for the FBI? Did you know
that at the time?
Mr. Miller. Yes.
Mr. LaTourette. OK. Did you during the contact that you
might have had with him during your representation of Mr.
Barboza ever believe that he was recording conversations that
you and he were having, that is you and Sharliss?
Mr. Miller. Yes.
Mr. LaTourette. Can you describe why it is you felt that?
Mr. Miller. A friend of mine knew Mr. Sharliss and knew
that he always had a recording apparatus. And I went to a
birthday party, and Mr. Sharliss is where I met him. He told me
what great friends he was with Mr. Barboza. Offered me several
hundred dollars just for cigarettes for Mr. Barboza. And I
said, why don't you just go deliver that yourself. And that
conversation was played back to me by some law enforcement
agent.
Mr. LaTourette. One of the witnesses to the murder, my
understanding, one of the eyewitnesses to the murder of Mr.
Clay Wilson was Wilson's wife, Dee.
Mr. Miller. That's correct.
Mr. LaTourette. There may have been some questions asked
earlier of you as to, I think, Mr. Cameron or maybe Mr. Brown,
you became concerned that there were threats made against your
eyewitnesses, contracts taken out on them, is that an accurate
observation?
Mr. Brown. Yes, that's true.
Mr. LaTourette. OK. Were any of you aware that Dee Wilson
was an FBI informant at that time?
Mr. Cameron. No.
Mr. Brown. No.
Mr. LaTourette. Mr. Miller.
Mr. Miller. No, I don't think so, sir. By the way, she was
held in protective custody around the clock by three agents.
Mr. LaTourette. In order to, Mr. Wilson has some questions
about Dee Wilson and some of the things that occurred. I want
to yield to him and hopefully we can be about finished.
Mr. Delahunt. Mr. Chairman, before the counsel makes an
inquiry, if I may.
Mr. LaTourette. Certainly.
Mr. Delahunt. The line of questioning that I was pursuing
relative to the parole of Mr. Barboza, I think that a partial
answer might be a letter that I was just handed by minority
counsel. If I may just have a moment to inquire of Mr. Miller
whether he has any recollection of hearing about or reading
this letter.
It would appear that it was dated in July 1975. It purports
to be from Mr. Barboza. It's signed Joseph Bentley, but I
presume that is his pseudonym. It's signed off as, always, Joe.
It's addressed to a Gary Evans. Was he an investigator?
Mr. Miller. Gregory Evans, yes.
Mr. Delahunt. Gregory Evans?
Mr. Miller. Yes.
Mr. Delahunt. He was an investigator that worked for you
during the course of this?
Mr. Miller. That's correct.
Mr. Delahunt. Let me just read some pertinent extracts, and
then I'll provide you or the clerk will provide you a copy of
this letter to see if it refreshes your recollection. I'm just
seeing this myself for the first time.
Halfway down the first page, he writes, I'm inserting the
parole board decision in this letter. California is rather slow
in reply, so I guess I'll be here 2 to 3 months more. Greg, I
plan to come to Santa Rosa for a visit and I'll make my
presence known immediately to the police. Why bring this up?
Because I truly, truly feel no ill.
Mr. Miller. Feels what, sir?
Mr. Delahunt. No ill will. It was my fault and not theirs
in regard to the case breaking wide open. So when I go into
Santa Rosa, I don't want nobody getting paranoid.
Then he proceeds to say, and this is probably the most
germane part of the letter in terms of the issue of early
release. The parole board said that this is the fastest hearing
in the history of Montana. You have made parole. I didn't even
say one word except thank you. And I floated out in a dream
that I never thought would come truthfully. You, Marty and Ted
H. made this all come true. Nobody did I ever owe so much to.
Always, Joe.
Mr. Miller. Ted H?
Mr. Delahunt. Ted H presumably would be Ted Harrington.
Does this in any way refresh your recollection?
Mr. Miller. I had no contact with him really, as I recall.
But I did give, from my files a number of correspondences. I
guess this was one of the letters I gave to Mr. Wilson.
Mr. Delahunt. OK. Mr. Chairman, I would request that this
letter be submitted and made part of the record.
Mr. LaTourette. Without objection.
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Mr. Delahunt. Thank you.
Mr. LaTourette. Thank you. Mr. Wilson.
Mr. Wilson. Just to followup on that, Mr. Miller did
provide this correspondence, very graciously allowed us to
review a number of letters that Mr. Barboza sent to his
investigator, Greg Evans. We also do have information from the
Montana and California authorities, and we're aware of the
various parole proceedings. In fact, Judge Harrington did in
fact testify at one of the parole proceedings on behalf of Mr.
Barboza. So that is something that did happen and tomorrow
we'll be able to ask Judge Harrington a question about that.
Mr. Brown, I just wanted to clarify one thing. There were
two witnesses to the murder of Clay Wilson, Dee Wilson and
Paulette Ramos.
Mr. Brown. Yes.
Mr. Wilson. Before you talked a little bit about them and
security concerns. Could you just walk us through in a
narrative fashion what happened with those two witnesses, from
your recollection?
Mr. Brown. OK. The exact date I'm not sure of. It was
before the trial, maybe 3 months before the trial, 4 months
before the trial. But at a point, we were told that three
individuals, and they were named for us, were coming from the
East Coast to eliminate our witnesses.
Mr. Wilson. Before you go to that, at this point, it's our
understanding that Ms. Wilson's house had been burned down.
Mr. Brown. Yes.
Mr. Wilson. Had this already taken place?
Mr. Brown. Yes.
Mr. Wilson. So is it correct to say that Ms. Wilson's house
had been burned down, and then after the house was burned down,
individuals came to you with information?
Mr. Brown. Yes. The house burned down before we knew we had
a body, before we knew her husband had been killed. We were
trying to identify these people that were coming. In the
meantime, we took the two witnesses and put them from house to
house. We moved them around.
Mr. Wilson. So they were in your protective custody?
Mr. Brown. Yes, sir. We tried, we asked the FBI to help us
out. We wanted them, who are these people, we need a
description of them, etc. Nothing happened. We tried to, all
avenues, we sought out. Anyway, Massachusetts has got this blue
book on criminals, and they were identified in this, we were
told if we could just find out the particulars, they were in
this book. And we got no help from the FBI. Weeks went by.
So we made a phone call to an attorney in Boston. I believe
his number and name were given to us by Geraway, call this guy,
you'll get it. We did and we got it. We got the information on
these three people.
Mr. Wilson. So to just restate this, you were worried that
your two eyewitnesses would be murdered?
Mr. Brown. Yes.
Mr. Wilson. And the only person that ended up helping you
was a man who was serving a life sentence himself?
Mr. Brown. Yes, he got mail, we went through his mail. How
he got information, I really don't know how he found out
things. He was locked up, we had him isolated. I don't remember
anybody coming to visit him. Anyway, so we made this phone call
to an attorney in Boston. And it wasn't too long after that we
had this information of who these individuals were. In fact, it
was pages, or copies of pages from this book, blue book.
Mr. Wilson. Just before we resumed this session of the
hearing, you mentioned that you had information at the time
that Barboza may have been involved in other homicides?
Mr. Brown. Yes.
Mr. Wilson. Could you tell us a little bit about that?
Mr. Brown. I was looking at exhibit 6 about the bonds, the
DeCarli bonds. There was a young man from Santa Rosa that made
a trip back to New Bedford with Barboza before we knew we had a
homicide. And he was present at a meeting with the individuals
discussed, named here in this book, or in exhibit 6. And what
he told us, what he told me is exactly what you have got in
this report.
Barboza moved freely. He moved freely across the country.
He did what he wanted to do. But the bonds had a large bearing
on things as far as Barboza was concerned. Because these bonds
started turning up across the country in other lands, in back
rooms of stock companies. And they were the DeCarli bonds who
our witness said he was with Barboza when he met with Bailey
and all this happened.
Sure enough, it was after Barboza's trial that things
started coming to light, these bonds started appearing in these
back rooms of stock companies.
Mr. Wilson. What about, there were a couple of homicides?
Mr. Brown. Yes. That same man, and I can't remember his
name, the same man told us, myself and another investigator,
that he thought Barboza had shot another man, and he was buried
on a hill across the street from his house, which was up, I
think it was on Saint Elena Road outside of Santa Rosa. We
spent a lot of time up there, we took infrared pictures, we
couldn't find anything. We couldn't find a body.
However, on a Halloween before Barboza was arrested in
Massachusetts, we were told by two individuals, Geraway was one
of them, that Barboza shot a man riding a bicycle on Halloween
night, a black man. Drove by and shot him with a 45 automatic.
You know, that information was passed on the New Bedford police
and I don't know whatever became of that.
Mr. Wilson. Are you aware of any Federal efforts to try and
solve these crimes?
Mr. Brown. No. This information was passed on, though.
Agent Ahlstrom was advised of this.
Mr. Wilson. I ask that because we received all of the
records that appear to be relevant to this from the FBI and
we've not seen any of the information that you apparently
passed on to them.
Mr. Brown. Agent Ahlstrom was informed. He was told, an
ongoing deal.
Mr. Wilson. Thank you very much.
Mr. LaTourette. Thank you, Mr. Wilson.
Just to sum up the point, Dee Wilson was in your custody,
and she was, somebody in the FBI's protective custody was
trying to kill people in your custody, is that what we had
going on pretty much, Mr. Brown?
Mr. Brown. No, sir. At the time we had those two witnesses
under protection, it was individuals who were, I don't think
they were in the Witness Protection Program.
Mr. LaTourette. No, but Mr. Barboza was in the Witness
Protection Program?
Mr. Brown. Yes, sir.
Mr. LaTourette. And he was the one on trial, so the person
that would benefit from Dee Wilson's destruction would have
been Mr. Barboza, who was in the Federal Witness Protection
Program?
Mr. Brown. You're correct.
Mr. LaTourette. OK. Mr. Chairman, is there anything you'd
like to ask?
Mr. Burton. No, I just wanted to conclude by saying pretty
much the same thing as Mr. Delahunt, and that is, we appreciate
very much all three of you coming out here from the West Coast,
Nevada and California and testifying. Hopefully your testimony
and answering of questions will be very helpful in getting us
to the answers we want and getting the information we want from
the Justice Department. You helped us make our case and we
appreciate it very, very much.
With that, Mr. Chairman, thank you.
Mr. LaTourette. Thank you, Mr. Chairman.
Mr. Delahunt, any closing words?
Mr. Delahunt. I would make a note that tomorrow we will be
continuing this inquiry.
Mr. Miller. Thank you.
Mr. Burton. Let me just ask, if the Chair would yield, do
you plan to leave tomorrow, or when are you planning to go back
out west? Would it be possible for you to stay tomorrow?
Mr. Brown. Yes, sir. We're going home Friday.
Mr. Burton. Just in case, it might jog your memory and
there may be some additional information you could give to us.
If you do, I hope you'll contact Mr. Wilson or myself and let
us know.
Mr. Cameron. Do we get that fabled lobster, sir?
[Laughter.]
Mr. LaTourette. I think you have to go to Boston to get the
lobster.
Mr. Burton. I don't know if I can get you lobster, but
we'll certainly take care of your expenses until you leave.
With that, thank you, Mr. Chairman.
Mr. LaTourette. Thank you, Mr. Chairman.
And gentlemen, you go with the committee's thanks. By the
power invested in me by Chairman Burton, this hearing is
adjourned.
[Whereupon, at 2:06 p.m., the committee was recessed, to
reconvene on Thursday, February 14, 2002.]
THE CALIFORNIA MURDER TRIAL OF JOE ``THE ANIMAL'' BARBOZA: DID THE
FEDERAL GOVERNMENT SUPPORT THE RELEASE OF A DANGEROUS MAFIA ASSASSIN?
----------
THURSDAY, FEBRUARY 14, 2002
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to recess, at 10 a.m., in room
2154, Rayburn House Office Building, Hon. Dan Burton (chairman
of the committee) presiding.
Present: Representatives Burton, Barr, Morella, Horn,
LaTourette, Cummings, Kucinich, Tierney, and Lynch.
Also present: Mr. Delahunt.
Staff present: Kevin Binger, staff director; James C.
Wilson, chief counsel; David A. Kass, deputy chief counsel;
Mark Corallo, director of communications; Thomas Bowman, senior
counsel; Chad Bungard and James J. Schumann, counsels;
Elizabeth Clay, professional staff member; Robert A. Briggs,
chief clerk; Robin Butler, office manager; Elizabeth Crane,
legislative assistant; Elizabeth Frigola, deputy communications
director; Joshua E. Gillespie, deputy chief clerk; Nicholis
Mutton, assistant to chief counsel; Leneal Scott, computer
systems manager; Corinne Zaccagnini, systems administrator;
Michael Yeager, minority deputy chief counsel; Ellen Rayner,
minority chief clerk; and Jean Gosa and Earley Green, minority
assistant clerks.
Mr. Burton. The Committee on Government Reform will come to
order.
I ask unanimous consent that a statement by John Cavicchi,
attorney for Peter Limone--is that how you pronounce his name,
Limone--be included in the record. Without objection, so
ordered.
[The information referred to follows:]
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Mr. Burton. We are resuming the hearing which we began
yesterday morning. I will make a brief opening statement.
As everyone knows, we have been reviewing the way the
Justice Department and the FBI have been investigating
organized crime over the last three or four decades. We have
been looking very hard at the way the FBI handled their
confidential informants in Boston--which has been a disaster.
We have held 2 days of hearings. We focused on two
different trials--Joe Salvati's trial and Joe ``the Animal''
Barboza's trial. The way the FBI and the Justice Department
behaved during those two trials was as different as night and
day.
What happened says a lot about why we are conducting this
investigation.
Joe Salvati was on trial for the murder of Teddy Deegan in
1967. He had no history of involvement in organized crime. The
FBI had all kinds of evidence that other people committed the
murder. But the FBI allowed their star informant, Joe ``the
Animal'' Barboza, to testify against Salvati. He lied. He
committed perjury and convicted four men who did not commit the
crime. The FBI knew Barboza was lying and they did not lift a
finger to stop him. They let Joe Salvati go to prison for 30
years. And as I understand it, they initially asked for the
death penalty but they gave him life imprisonment and he spent
30 years there.
Joe Barboza went on trial for murder in 1971. Here you had
a known mob hit man. The FBI believed that he had already
committed 26 murders. The evidence against Barboza in the 1971
trial was overwhelming. The detectives and even Joe Barboza's
lawyer testified yesterday that it appeared to be slam-dunk
capital murder case. And then the FBI pulled out all the stops
to try to help Joe Barboza get off.
They flew out to California. They worked with the defense
team. They testified on Barboza's behalf. According to our
witnesses to date, 2 days after FBI agents Paul Rico and Dennis
Condon testified, along with Justice Department lawyer Edward
Harrington, the prosecutors agreed to a lenient plea bargain.
Mr. Cameron said it all yesterday: ``The FBI at the time
was considered pretty sacrosanct. They had damaged our case to
the point that we didn't think the jury would give us a first
degree murder verdict.'' Mr. Cameron said that what was really
damaging was, ``having the FBI there and the color of their
authority painting him [Barboza] as honest and truthful.''
So in 1967, they had an innocent man on trial--Joe Salvati.
The FBI had all the evidence showing that he was innocent. And
they let their star witness commit perjury and put Mr. Salvati
away for 30 years. Four children and a wife, and they missed
him for 30 years.
In 1971, they had a known Mafia hit man on trial. The
evidence against him was overwhelming. And the Justice
Department and the FBI flew all the way across the country,
testified on his behalf, and helped him get a soft sentence. I
think it was 5 years to life, and he was out in about 3 years
or something like that.
But it does not stop there.
Joe Salvati spent 30 years in prison. His lawyer, Victor
Garo, spent decades trying to get his sentence commuted. When
Mr. Garo submitted petitions to the Massachusetts pardon
commission, it appears that the FBI helped stop Mr. Salvati
from getting a pardon.
Joe Barboza spent less than 5 years in prison. At his first
opportunity for parole, Mr. Harrington, from the Justice
Department, flew out to Montana to testify on his behalf. In a
1973 letter, Joe Barboza wrote, ``the parole board said this is
the fastest hearing in the history of Montana, how you made
parole, I didn't even say one word!''
In the same letter, he thanked Mr. Harrington profusely:
``How can I ever thank you and Marty for what you two and Ted
H. did for me today. Words can never even begin to express what
I feel.'' This is a man that killed 26 people at least,
murdered 1 while he was in the Witness Protection Program. The
FBI and the Justice Department helped him get a light sentence
instead of first degree murder which was a death penalty in
those days, and then they helped him get parole. While Mr.
Salvati rotted in prison for 30 years. That was in 1973. Joe
Barboza, who murdered a bunch of people and lied on the witness
stand, was about to be a free man. Joe Salvati, who never
killed anyone, had another 20 years to spend in prison.
I do not know about anyone else, but it seems to me like
Justice was stood on its head.
That is why we are conducting this investigation. We had a
Justice Department that was determined to break the back of the
mob, and that is good. But in Boston, we had a group of FBI
agents who decided to throw the rules out the window. They let
a lying witness send innocent men to death row and life in
prison. They had a group of mob informants committing murders
with impunity. They tipped off killers so they could flee
before being arrested. They interfered with local
investigations of drug dealing and arms smuggling. And when
people went to the Justice Department with evidence about
murders, some of them wound up dead.
We cannot allow this type of conduct. We need to know how
extensive it was. We need to know how far up the food chain
this went. How many people at the Justice Department and the
FBI knew what was going on? J. Edgar Hoover received two memos
every week about the illegal wiretaps in New England. We have
dozens of other memos written to him about the Deegan murder
and other topics.
We cannot have the FBI or the Justice Department being
complicitous in giving innocent men life sentences or possibly
the death penalty. We cannot have the FBI winking and looking
the other way when their informants go on a crime spree.
I cannot understand why Mr. Rico and Mr. Condon and Mr.
Harrington did what they did in the Clay Wilson murder trial.
Joe Barboza was a cold-blooded killer. They gave him a new
identity. They put him in the middle of an unsuspecting
community. They put him on the payroll. And he killed again. At
that point, they should have locked him up and thrown away the
key. But they did just the opposite. They did everything they
could to get him back out on the street. Joe Barboza was
murdered himself in 1976. I just have to wonder, if he had not
been killed, how many more murders would they have let him
commit before the Justice Department decided to rein him in?
On our first panel, we have two of the three men who
participated in that trial in California. Paul Rico, who was an
FBI agent, is here. Edward Harrington, who was the chief of the
Justice Department's Strike Force Against Organized Crime in
New England, is here. Mr. Rico is now retired. Mr. Harrington
is now a Federal judge.
We appreciate both of you being here today. We have lots of
questions about the things that you did and the reasons that
you did them. And we are looking forward to hearing what you
have to say.
We were also going to have Dennis Condon, the other FBI
agent, testify today. But because of his health problems, we
have excused him for today. However, he will be interviewed
under oath by the committee members and staff next week. We are
going to send I think two or three committee members. I think
you are going to be going up there next week along with the
gentleman from Ohio.
On our second panel, we have Jay Bybee, the head of the
Justice Department's Office of Legal Counsel. We asked Mr.
Bybee to be here because of the ongoing dispute that we have
over this committee getting access to documents that we need.
I think everyone knows that last fall we subpoenaed a set
of Justice Department memos that deal directly with the issues
we are looking at. The Justice Department found 10 memos that
comply with the subpoena, but they refuse even to let us see
them. Now we did see one yesterday, they finally acquiesced on
that one. After all of the terrible things that happened up in
Boston--perjury, murders, obstruction of justice, an innocent
man spending 30 years in prison--they refuse to let us see
those documents, with the exception of one.
Let me be clear. This is the People's House. We are the
elected Representatives of the people. Our constituents send us
here to oversee the Government and to protect their rights. And
that is the system of checks and balances.
I want to say also that we asked for documents pertaining
to this case in addition to the ones we subpoenaed 6 months
ago, I think it was over 6 months ago, in June of last year.
And yesterday, the Justice Department dumped thousands of pages
of documents on my chief counsel's desk, knowing full well that
we could not go through them before today's hearing. Now he did
review some of those last night and some of those documents are
very, very important to this investigation.
So I just want to say to the Justice Department, if you
think because you dropped those on our desk last night and
knowing that we would not have a chance to review them before
the hearing today, you made a mistake. Because we will review
those documents and if we have to we will haul everybody back
in here, including the Justice Department, to go over those
documents. So this kind of nonsense has to stop. If we ask for
documents and you are going to give them to us, do not give
them to us at the last minute so we cannot look at them. We are
not going to let that stand.
This is not going to end until we get the documents we want
and find out what happened and bring this case to a close. We
had a bunch of criminals running around killing people under
virtual FBI protection. The FBI let innocent men die in prison.
And we have an obligation, as I said, to get to the bottom of
it.
Yesterday, we had a little crack in the dike. The Justice
Department let us read one of the memos. They did not let us
keep it, but they let us read it. It was written by Judge
Harrington over 30 years ago. It goes right to the heart of
what we are investigating. It would have been helpful if we had
read this weeks ago before we interviewed Judge Harrington up
in Boston. But we have read it now and that is a step in the
right direction.
I have told the Justice Department, I will tell everyone
here today, as I said a moment ago, with probably more passion
than is in this document, we are not going to let this stand.
We are going to get to the bottom of it.
We had one other little surprise yesterday, and I alluded
to that as well.
I want to ask my friends from the Justice Department, how
are we supposed to conduct an investigation when we have these
kinds of problems? We have a Federal judge testifying. We have
a former FBI agent appearing under subpoena. And we get
thousands of new documents in at the last minute. It is not
fair to those who are staying here till 3 a.m. and then finding
out about this the next day. My staff has been working till 2
and 3 a.m. the last 2 or 3 weeks to prepare for these hearings.
I appreciate what they do and I am very sorry that after all
that work we get all this thrown at us at the last minute. But
we will get to the bottom of it.
[The prepared statement of Hon. Dan Burton follows:]
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Mr. Burton. Do you have an opening statement that you would
like to make?
Mr. Delahunt. I do not have an opening statement, Mr.
Chairman. Again, thank you for extending the invitation to
myself and my colleagues from Massachusetts, Mr. Frank and Mr.
Meehan, to serve on the committee. Obviously, we have a
parochial interest as well as an interest in discovering the
truth.
But let me take this opportunity while I am here to welcome
as a witness Judge Harrington. Judge Harrington and I have
interfaced and intersected on many occasions; when I was a
District Attorney in the greater Boston area, and when he was
the U.S. Attorney. I just read through his statement and this
is at the conclusion, but I think it is important that I read
it. ``Today, many believe that Joseph Salvati was falsely
implicated by Baron.'' I happen to feel confident about that
conclusion, Mr. Harrington. ``I do not know whether this
allegation is true or not, but I wish to make clear that the
government's campaign against organized crime could never
justify the false conviction of any man and that I would never
knowingly participate in any scheme to elicit false testimony
or to cover up a false conviction.''
I want you, Mr. Chairman, to know and I want to say it
publicly that I am absolutely convinced of the veracity of that
statement. I've known Mr. Harrington for 30 years. We have had
some disagreements along the way. But I know him to be a man of
integrity, and I believe Ted Harrington. I yield back.
Mr. Burton. Mr. Barr. Mr. Horn.
Mr. Horn. Thank you, Mr. Chairman. I praise you for the
tenacity and the focus you have on this situation. And I would
hope that the Attorney General of the United States will wake
up and say let's clean house. The new Director of the FBI seems
to be a very fine person and he ought to look at C-SPAN and
walk out of his luxurious office there and say the FBI is not
going to be corrupt and we are going to get to the bottom of
it.
And the business of dumping box after box of memoranda at
the last minute reminds me of most of what we have listened to
from the Clinton administration. I would hope that this Bush
administration will not be sort of having a problem of not
doing anything because the President is invoking executive
privilege. I think that is just wrong. And it will be a sad
story if that happens. Thank you, Mr. Chairman.
Mr. Burton. Thank you, Mr. Horn. Mr. Tierney, I believe you
said you wanted to pass on an opening statement.
Mr. Tierney. That is correct.
Mr. Burton. OK. We will get right to it. We will start with
you, Mr. Rico. Let me swear you in first. Would both of you
please stand.
[Witnesses sworn.]
Mr. Burton. Mr. Rico, do you have an opening statement?
Mr. Rico. I am accompanied by counsel today. On advice of
counsel, it is my intention to invoke my fifth amendment rights
to remain silent in response to every question asked by the
committee today.
Mr. Burton. We certainly understand you exercising your
fifth amendment rights. However, when you were here the last
time we asked you, I think I had my counsel come out and talk
to you directly, and I asked you if you wanted to have legal
counsel advise you. I think you were very graphic, I will not
comment on exactly what you said, but you said something about
your age and you did not have anything, that you were not
concerned about testifying, and you testified. And I am just
curious about why there is a different attitude today than
there was the last time you appeared before the committee.
Mr. Rico. I have my counsel here today and he advised me,
and I am taking his advice and am invoking my fifth amendment
right to remain silent in response to every question asked by
the committee today.
Mr. Burton. Very well. Could you at least identify your
counsel, please.
Mr. Rico. Yes. Peter Parker.
Mr. Burton. OK. And he is your local counsel from up in
Massachusetts?
Mr. Rico. Yes.
Mr. Burton. OK. Thank you. Judge Harrington, do you have an
opening statement you would like to make?
STATEMENT OF EDWARD F. HARRINGTON, SENIOR JUDGE, FEDERAL
DISTRICT COURT, FORMER ASSISTANT U.S. ATTORNEY
Judge Harrington. First of all, I want to thank the
chairman and the committee for the opportunity to answer your
questions. I would ask that my full statement be made part of
the record of these proceedings as well as the one attachment
which is a memorandum that I prepared on August 28, 1970. With
the permission of the chairman, I would like to just read
approximately 10 paragraphs from that statement.
Mr. Burton. That is fine. And the rest of your statement
will appear in the record and we will take a look at it.
Judge Harrington. From 1961 to 1966, over 60 gangland
figures were murdered in the Boston Gang Wars. Prior to 1968,
none of these murders was prosecuted. Law enforcement was
unable to prosecute organized crime because of the essential
characteristics of organized crime, namely, the insulation of
the ``boss'' from the overt criminal act, the underworld's code
of silence, and the threat of reprisal should anyone testify
against its members. Because of these realities, in order to
prosecute a major racketeer, accomplice witness testimony was a
necessity. This was especially so before the legalization of
court authorized electronic surveillance in 1970.
In 1967 Joseph Baron was the first of the organized crime
accomplice witnesses to be developed in New England and one of
the first such witnesses in the entire Nation. Baron was the
original witness in the Witness Protection Program and the
Government's experience gained in protecting him provided the
basis for the congressional establishment of the formal Witness
Protection Program in October 1970.
In the spring of 1967, Baron expressed to the FBI a
willingness to testify in three prosecutions, namely, the
Patriarca case involving the charge of conspiracy to travel
interstate to murder Willie Marfeo, which was tried in the
Federal court in March 1968; and the DeSeglio and Deegan murder
cases which were both tried in State court, by District
Attorney Garrett Byrne's office.
I was an assistant U.S. attorney assigned to the Federal
Patriarca case and was not involved in the prosecution of the
two State murder cases. I never knew the details of Baron's
testimony concerning the conspiracy to murder Deegan. I never
discussed the case with him. According to the Massachusetts
Supreme Judicial Court, Baron's testimony in the Deegan case
was developed by the District Attorney's office ``in pieces''
from July through October 1967.
I was not cognizant of any information provided by
confidential informants concerning the Deegan murder. I never
had any knowledge of the confidential informant reports that
have recently come to light.
Walter T. Barnes and I interviewed Baron at Walpole Prison
on August 28, 1970, after he had been arrested on a gun
carrying charge in the Commonwealth of Massachusetts. Baron
requested to see Barnes and me. The information contained in
our memorandum to James Featherstone of that same date fully
sets forth what Baron told us during that interview. Baron told
us that his recantation was false, that it was induced by the
payment of money funded by the organization, and that his trial
testimony in the Deegan murder case was truthful. I have asked
that a copy of that memorandum be made a part of the record in
these proceedings. At the time of this interview, Barnes and I
were unaware of Baron's alleged involvement in the killing of
Clay Wilson in California.
I was authorized by the Attorney General of the United
States, after being subpoenaed by defense counsel, to testify
on Baron's behalf in the Wilson murder case in California in
1971, to bring to the attention of the court the extent of
Baron's cooperation with prosecuting authorities in their fight
against organized crime. The reason for this testimony was
threefold: The Government had promised to bring the extent of
his cooperation to sentencing authorities at the time he was
developed as an accomplice witness; in that Baron was the
original witness for the Witness Protection Program and as the
Government's experience gained in protecting him served as the
basis for the congressional establishment of that program in
1970, the Government supported Baron to provide needed support
to the fledgling Witness Protection Program; and three, it
provided the Government an opportunity to send a signal to
potential informants and accomplice witnesses that the
Government would honor its commitments in their cooperation
with the Government in its fight against organized crime.
The Justice Department's strategy was very successful. In
the next several years the Government was able to develop many
significant accomplice witnesses.
In summary, I did not try the Deegan murder case and was
not cognizant of the details of its evidence. I did not believe
that any information of which I was aware was exculpatory. I
believed that any recantation by Baron would have been
perjurious. And I testified at the Wilson murder trial under
the explicit instructions
of the Attorney General of the United States, after having been
subpoenaed by Baron's defense counsel.
Thank you, Mr. Chairman, for the opportunity to make an
opening statement.
[The prepared statement of Judge Harrington follows:]
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Mr. Burton. Just 1 second.
Mr. Barr. Mr. Chairman, the witness kept referring to the
name ``Baron.'' For clarification, that is Joseph ``the
Animal'' Barboza, is that correct?
Mr. Burton. Yes. Mr. Barboza, when he went into the Witness
Protection Program, that was one of the pseudonyms that he
used, an alias.
Mr. Barr. OK.
Mr. LaTourette. Mr. Chairman, could I make an inquiry of
the staff. Judge Harrington, when he made his opening remarks,
referred to a memo I think that was prepared following a visit
to Walpole Prison. Is that in our exhibit book?
Mr. Burton. I do not think--did we have that exhibit?
Mr. Wilson. Mr. LaTourette, that is not in the exhibit
book. There was a prosecution memo prepared in 1967 that we
were allowed to review yesterday that the Justice Department
has not provided to us. Now there was another memorandum that
was referred to that is attached to Judge Harrington's
statement.
Mr. Burton. He wanted to make it part of the record.
Mr. Wilson. And we have that.
Mr. Burton. Do members of the committee have that?
Mr. Wilson. Yes.
Mr. Burton. They do have that. OK.
All right, we will proceed. Before we get to questioning, I
have a couple pages of background information we want to read
into the record and then we will get started with the
questioning.
Teddy Deegan was murdered in 1965. The FBI had considerable
information about the Deegan murder in 1965. It knew from
informants and microphone surveillance, wiretaps, and
surveillance that Joe ``the Animal'' Barboza and Jimmy ``the
Bear'' Flemmi were involved in the murder. But before this
information was developed, both Special Agents Rico and Condon
knew that Flemmi wanted to become a professional assassin.
On May 25, 1964, Dennis Condon wrote a memo that talks
about Jimmy ``the Bear'' Flemmi. Mr. Condon said that ``all he
wants to do now is kill people'' and that ``it is better than
hitting banks.'' Mr. Condon then indicated that the informant
told him that Jimmy Flemmi feels he can be the top hit man in
the area, and he intends to be. That is in exhibit 8 of our
documents that we have.
[Exhibit 8 follows:]
[GRAPHIC] [TIFF OMITTED] T8662.058
Mr. Burton. Five months later, Mr. Rico, you wrote a memo
that says, an informant told you that Jimmy Flemmi wants to be
considered the best hit man in the area. That is exhibit No. 9.
A few days later, Mr. Rico, you wrote a memo that says an
informant told you that ``Jimmy Flemmi wants to kill Teddy
Deegan.'' That is exhibit No. 10.
[Exhibits 9 and 10 follow:]
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Mr. Burton. In late December 1964 Director Hoover was
informed that Jimmy Flemmi stabbed FBI informant George Ash 50
times and then shot him. Yet in early 1965, even though it knew
that Flemmi's professional goal in life was to be an assassin,
the FBI targeted Jimmy Flemmi to be an informant. That is
exhibit No. 11.
[Exhibit 11 follows:]
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Mr. Burton. The day after the FBI indicated that it wanted
Flemmi as an informant, Mr. Rico wrote a memo that came from
information that was obtained through microphone surveillance
of Raymond Patriarca. The memo said that Patriarca gave
permission for Jimmy Flemmi to kill Edward Teddy Deegan. In
fact, the memo even says that a dry run had already been made
and that Deegan would be set up by a close associate. This
information was important enough that it was sent to FBI
Director J. Edgar Hoover in Washington. Two days later,
Director Hoover and three office supervisors in Albany,
Buffalo, and Miami were sent the following information by
AirTel: ``James Flemmi and Joseph Barboza contacted Raymond
Patriarca and they explained that they are having a problem
with Teddy Deegan and desired to get the OK to kill him. Flemmi
stated that Deegan is an arrogant, nasty sneak and should be
killed.''
Mr. Rico, I will skip the questions for you right now. And
I think I will yield time starting off to--well, we will skip
the questions for right now.
Later the same day that the FBI Director got the
information about the plan to kill Deegan, Deegan was murdered
in an alley in Chelsea, MA. The day after the Deegan murder,
Agent Rico wrote a memo describing in detail who killed Deegan
and how the murder was carried out. This memo says that
``Informant advised Vincent Jimmy Flemmi contacted him and told
him that the previous evening Deegan was lured to a finance
company in Chelsea and that the door to the finance company had
been left open by an employee of the company, and when they got
to the door Roy French, who was setting Deegan up, shot Deegan
and Joseph Romeo Martin and Ronnie Cassesso came out the door
and one of them fired into Deegan's body. While Deegan was
approaching the doorway, he [Flemmi] and Joe Barboza walked
over toward the car driven by Tony Stats and they were going to
kill Stats but Stats saw them coming and drove away before any
shots were fired. Flemmi told informant that Ronnie Cassesso
and Romeo Martin wanted to prove to Raymond Patriarca that they
were capable individuals and that is why they wanted to hit
Deegan. Flemmi indicated they did an awful sloppy job.''
A few days later, on March 19, 1965, the head of the FBI
office in Boston sent an AirTel to FBI Director Hoover. It
states: ``Informants report that Cassesso, Martin, Vincent
James Flemmi, and Joseph Barboza were responsible for the
Deegan killing.''
On June 4, 1965, the head of the Boston office sent another
memo to Director Hoover. It is about Jimmy Flemmi. It states:
``It is known through other informants and sources that this
individual [Jimmy Flemmi] has been in contact with Raymond
Patriarca and other members of La Cosa Nostra in this area and
potentially could be an excellent informant. Concerning the
informant's emotional stability, the agent handling the
informant believes from information obtained from other
informants and sources that [the FBI code number for Vincent
Jimmy Flemmi] murdered,''--and then we have some redacted
information that we do not have--``Edward Teddy Deegan and
[blank] as well as a fellow inmate at the Massachusetts
Correctional Institution at Walpole, Massachusetts, and from
all indications he is going to continue to commit murder.
Although the informant will be difficult to contact once he is
released from the hospital because he feels that [blank] will
try to kill him, the informant's potential outweighs the risk
involved.''
The FBI Director was told, Mr. Hoover was told that Flemmi
had previously murdered seven people, including Teddy Deegan.
There are dozens of additional details that are important, but
that provides a summary of what was known by the FBI in 1965.
Joe Barboza and Jimmy Flemmi killed people for money and
they killed people for pleasure. The FBI wanted Jimmy Flemmi
and his brother Stevie ``the Rifleman'' Flemmi to be
informants. The FBI had microphone surveillance information
that Flemmi and Barboza were going to kill Deegan, and the FBI
had information that Flemmi and Barboza did kill Deegan.
Neither Flemmi nor Barboza appear to have been questioned about
the Deegan murder in 1965 and nothing happened to them.
Two years passed and Joe Barboza was arrested in 1967 on an
unrelated crime and faced a 70 year prison sentence. The FBI
assigned H. Paul Rico and Dennis Condon to work with Barboza to
see if they could get him to become a cooperating witness. They
convinced Barboza to testify in three different trials. One of
the trials was for the murder of Teddy Deegan. Before the
trial, however, Barboza told Mr. Rico and Mr. Condon something
that was very important. In one of those very first interviews,
Barboza told Mr. Rico and Mr. Condon he would never provide
information that would allow James Vincent Flemmi to ``fry.''
We will now go to the questions and we will start off with
Mr. Barr. I will reserve my time, Mr. Barr.
Mr. Barr. Mr. Rico, I would like to ask you a question that
has nothing to do with testimony in this case. But over the
years, I am sure as an FBI Special Agent you had a lot of
witnesses that took the fifth. You knew they were guilty of
something and that is why they took the fifth. Are you
comfortable being in that position yourself today?
Mr. Rico. I invoke my fifth amendment right to remain
silent in response to that question.
Mr. Barr. I heard you. I am just looking at you, something
to look at. Very interesting. I hope you sleep well at night.
Judge Harrington, on December 20, 2001, committee staff
interviewed you and you told us that you were not privy, and
that is consistent with your statement today, to information
that Barboza was providing Rico and Condon. But 3 days ago you
made the following statement to Boston reporter Dan Rea, and I
would like to run that tape, exhibit No. 18: ``. . . Vincent
Jimmy Flemmi. [Mr. Harrington:] He told the Bureau, and I was
informed of it, that of all the murders that he was involved
in, and Baron was reputed to be in over twenty murders, he
would not testify in those murders in which Jimmy Flemmi was
involved.''
[Exhibit 18 follows:]
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Judge Harrington. That is a correct statement, sir.
Mr. Barr. OK. And how do you square that with your
statement today, basically sort of the Ken Lay approach, that
you knew nothing and do not know anything?
Judge Harrington. I do not think I meant to convey that. If
I did, I am sorry. I indicated in my opening statement I
thought that I was unaware of any informant information
relating to the Deegan murder case. When I heard that, what I
just spoke of, from the FBI agents, that is what they conveyed
to me from Joseph Baron, not from any informant. Joseph Baron,
in my mind, was an accomplice witness at that time and not an
informant. So if there is any ambiguity, I am quite sorry. But
my statement there on TV was absolutely correct and I do not
believe that it is inconsistent with my opening statement.
Mr. Barr. It is your testimony here today that whatever you
now know about or previously knew about information that
Barboza was providing to Rico and Condon about committing
murders that was all information conveyed to you long after the
fact.
Judge Harrington. That is not so.
Mr. Barr. When was it that you found out what Barboza----
Judge Harrington. My statement is that I had no detailed
knowledge of Baron's testimony in the Deegan murder case and
that I had no information regarding informant information that
had been provided to the Bureau on the Deegan murder case. I
knew what Baron was going to testify on the Federal Patriarca
case because I was assigned to that case, I tried that case. So
I am making the distinction between the Federal Patriarca case
in which I was assigned as an assistant U.S. attorney and the
Deegan murder case which was tried in State court by the
District Attorney of Suffolk County. I did not know anything--
anything--about Baron's testimony with respect to the Deegan
murder case nor any informant information regarding it.
Mr. Barr. Did you ever discuss it with Mr. Rico?
Judge Harrington. Did I ever discuss what with Mr. Rico?
Mr. Barr. Mr. Barboza.
Judge Harrington. Of course, I discussed with Mr. Rico
about Mr. Barboza, but with respect to the Federal Patriarca
case, not the State Deegan murder case.
Mr. Barr. Give me some feel for how such a conversation
would take place. You have Mr. Rico who is well aware of
basically the entirety of Mr. Barboza's criminal activities,
both historical and current, and you are sitting there talking
to him as an assistant U.S. attorney tasked with a prosecution
and Mr. Rico starts to tell you something about the State case,
do you say, please, do not go into that, I do not want to know
about that. How could you compartmentalize----
Judge Harrington. I do not think I said that.
Mr. Barr. How could you compartmentalize the information
about this?
Judge Harrington. I do not think I said----
Mr. Barr. As a prosecutor, wouldn't you have wanted to find
out everything there is to know about this person?
Judge Harrington. I will say it again. I never discussed
the Deegan murder case with Joseph Barboza or with Mr. Rico. I
was assigned to the Federal case. That is what I concentrated
on.
Mr. Burton. Would you yield to me, please?
Mr. Barr. I yield to the chairman.
Mr. Burton. There was a wiretap----
Judge Harrington. There was a bug. It was a bug.
Mr. Burton. OK, there was a bug. And in that bug, we looked
at the document yesterday which came from the bug, and in that
there was a conversation between Joe ``the Animal'' Barboza,
who you keep calling Baron, and Flemmi and Patriarca, and in
that they said they wanted to kill Deegan. That information was
never brought out in the State trial but you knew about it. No,
wait a minute----
Judge Harrington. No, I am----
Mr. Burton. Just a minute. I know that you were not
involved in that trial but you knew about it ahead of time. And
I cannot understand as a prosecutor, knowing that Barboza and
Flemmi had asked Patriarca for permission to kill Deegan, you
knew they were involved, you knew that it was not bought up in
the trial, you knew that four people were being prosecuted for
it, but not Barboza and Flemmi, and you had exculpatory
information at your disposal and yet it never was brought out
during that trial. Now you were the prosecuting attorney in the
Patriarca case but you knew while this very infamous trial was
going on that it was Barboza and Flemmi that wanted to kill
Deegan. Why didn't you tell somebody that? Why didn't that come
out in the trial? You knew about it ahead of time.
Judge Harrington. Could I explain it.
Mr. Burton. Yes. I would like for you to explain it.
Judge Harrington. There are certain matters and sequence of
events that would have to be explicated, and I am prepared to
do it. First of all, I would like to tell the staff that when
they saw me on December 20 they were asking me questions
relating to matters that were 35 years ago and I told them that
at that time I had no memory of the references in the Patriarca
bug, and that was truthful.
Approximately a few weeks later, the FBI Task Force came to
me and provided me with my pros memo that Walter Barnes and I
had prepared in May and April 1967. Prior to their providing me
with the pros memo, I had no memory that I had even written
this pros memo which was, looking at it, 30 or 40 pages. This
pros memo related to our need to have the Department of Justice
approve the prosecution of Raymond Patriarca in the Federal
case. There were two references, at least two references were
shown to me about the logs from the Patriarca bug. I want to
just give you the sequence so you will know.
In preparing that pros memo, I was focusing on two things:
One, whether the results of the illegal Patriarca bug would
taint the Federal Patriarca case; and second, whether there was
anything in the logs of the Patriarca bug that would
corroborate Baron's testimony in the Patriarca case. I reviewed
those logs with Walter Barnes, 3 years of logs, in April and
May 1967. Baron's testimony in the Deegan State murder case was
developed in pieces by the District Attorney's office of
Suffolk County, according to the Supreme Judicial Court's
opinion in that case, from July 1967 to October 1967.
Now why did we have two references at least in the Deegan
murder case in the Patriarca pros memo? The fact that reference
that Patriarca gave authority to Baron to kill Deegan tended to
corroborate his testimony in the Federal Marfeo case because it
showed two things. One, that Joseph Baron had personal access
to the boss of the New England Mafia. That was something that
some people, including me, thought might not have been valid.
The second reason why it tended to corroborate Baron's
testimony in the Federal Patriarca case is it showed that he
received authorizations to kill from Patriarca. And that,
again, substantiated his testimony in the Federal Marfeo case.
So at the time, 5 months later, when the Deegan murder
indictments came down, 5 months after I had gone through the
logs, and James Flemmi's name was not named as a defendant, I
had no memory at that time of these two references. That is the
fact. And the reason is because I was exclusively involved on a
daily basis for prosecuting the major criminal figure in New
England for 35 years and that was my object.
Mr. Burton. With the consent of the committee, I want to
followup on this. Now Patriarca would have been guilty of
complicity in a murder by giving permission to Barboza and
Flemmi to kill Deegan.
Judge Harrington. No doubt about it.
Mr. Burton. There is no question about that.
Judge Harrington. No doubt about it.
Mr. Burton. Now if you knew that Patriarca had given
approval to kill Deegan, then why didn't you prosecute him for
that case? Because that was before the case in which you did
prosecute him.
Judge Harrington. The reason why we would not prosecute him
for that case is because it was a murder case. But the fact
that I said nothing when I did not see Patriarca's name as a
defendant in the Deegan murder case proves that at that time, 5
months later, I had no memory of the one reference in 3 years
of logs that I had looked at 5 months earlier.
Mr. Burton. Well, it stretches credulity as far as this
Member is concerned. It stretches credulity, Judge, that you
would have bugged recordings that showed that Barboza and
Flemmi asked Patriarca for permission to kill Deegan. That was
a murder charge that could have been used against him and that
would have stuck in your memory like a hot iron because you
were after this guy. And if that information stuck in your mind
and then you saw the Deegan murder trial at which four people,
not Barboza and not Flemmi, were on trial, that you would have
had this exculpatory memory emblazoned in your mind because you
were after Patriarca in the first place. And for you to say
that you did not remember it just stretches my imagination,
stretches credulity.
Judge Harrington. I think the record should be clear. These
logs, of which one reference I was supposed to remember 5
months later, were available to counsel for the defendants in
the Patriarca case, two of which counsel were counsel for the
defendants in the Deegan murder case. So the defendants in the
Deegan murder case were well aware of this reference to
Patriarca, Baron, and Flemmi.
Mr. Burton. How do you know that the defense counsel for
the defendants in that murder case, the Deegan murder case had
access to this information about Barboza and Flemmi asking
Patriarca for permission to kill Deegan?
Judge Harrington. It is my understanding and memory that
they were so authorized under court order.
Mr. Burton. We will have to check that out, because I
cannot imagine defense counsel not bringing that exculpatory
information before when there are four people up on a murder
charge and three of those people were not involved in that
murder. It would be a dereliction of their responsibility to
not bring that out. And so I am going to find out if they had
that information.
Judge Harrington. Could I answer the chairman. The reason
they did not bring it out is because if they had brought out
the fact on cross-examination that the Deegan murder was a
sanctioned hit coming from Rhode Island and also concurred in
by the Boston mob, two other individuals would have gone down,
obviously; namely, Henry Tameleo, the alter ego of Raymond
Patriarca, and Peter Limone, the alter ego of Gennaro Angiulo.
Mr. Burton. So?
Judge Harrington. So if it was an authorized hit, as the
logs seem to say it was, then Limone and Tameleo are there.
Because at that time there was no authorized hit in
Massachusetts that was not authorized by Patriarca or Tameleo
and concurred in by Angiulo and Limone.
Mr. Burton. I know, but that is not the point. You had four
people, three of whom were not guilty of the Deegan murder, on
trial. Their defense attorneys, you are telling us, had access
to this information, this exculpatory information that Barboza
and Flemmi asked Patriarca for this hit on Deegan. And for
defense counsel to have that information when their people are
up on a murder charge and not bring that out in court does not
make any sense. It just does not make any sense.
Judge Harrington. I did not say all of them. I said the
counsel for Henry Tameleo and counsel for Ronald Cassesso, who
were the defendants in the Federal Patriarca case, were also
counsel for those two same defendants in the Deegan murder case
and they had access to the logs under court order.
Mr. Burton. What about the counsel for Mr. Salvati?
Judge Harrington. Mr. Salvati was represented by the law
firm of Henry Tameleo's lawyer.
Mr. Burton. And so you are saying that there was collusion
between them to keep this under wraps.
Judge Harrington. I am not saying it at all.
Mr. Burton. His attorney is right here right now, Mr.
Salvati's attorney.
Judge Harrington. I am not saying that. Mr. Garo was not
counsel for Mr. Salvati at that time.
Mr. Burton. So Mr. Salvati's counsel was connected to the
law firm that was----
Judge Harrington. He was. He was an associate of the lead
attorney in the Deegan murder case.
Mr. Wilson. Judge Harrington, just to try and clarify this
one issue. It is my understanding that in the Patriarca case,
the Federal case, the information that would have been turned
over to the defense might not have been all of the Patriarca
logs but it would have been information that was germane to
Patriarca's involvement in the Marfeo murder conspiracy. Is
that correct?
Judge Harrington. I do not know. I do not know. But I was
told, when I was interviewed by the Task Force of the FBI, when
for the first time in 35 years they showed me my exhaustive
prosecution memo on the Patriarca case, they advised me and
they refreshed my recollection that Tameleo and Cassesso's
lawyer had access to the logs of the Patriarca bug. How much
they were, I do not know, they did not say that and I did not
question it.
Mr. Wilson. Well this is an important distinction, because
in the Taglianetti case it is true that the Taglianetti defense
lawyers only got a very small subset of the Patriarca logs.
Correct?
Judge Harrington. That is correct.
Mr. Wilson. So it would stand to reason that in the
Patriarca Federal case the defense lawyers would only get
information that was germane to the Patriarca case.
Judge Harrington. I do not think that is true. And the
reason is this, sir, if I can explain. The real first reason we
were obligated by the Department of Justice to review the 3-
years of the logs of the illegal Patriarca bug was to ensure
that there would be no taint, no taint that would prevent our
proceeding in the Federal case. Therefore, we reviewed all the
logs and it is my belief, sir, my belief, that all the logs
were made available to defense counsel in the Federal case.
Mr. Burton. Let me just followup. But you did know from the
illegal bug, you did know while the case was going on in which
these four defendants were up for murder on the Deegan case,
you did know at that time that there had been a conversation
between Flemmi, Barboza, and Patriarca about the murder.
Barboza, Flemmi, and Patriarca had a conversation. You knew
when the trial was going on that these four people were on
trial in the Deegan murder case, you already knew that
conversation took place. So you had exculpatory information at
your disposal. And what you are saying is that you were
prohibited from divulging that information because of the
Patriarca case that you wanted to prosecute later on.
Judge Harrington. No. That was not the reason, sir.
Mr. Burton. Well why did--when you were reading in the
newspapers that these four people were going to be convicted
and you knew that Barboza and Flemmi had talked to Patriarca
about this hit, why didn't you say something? These four guys--
he spent 30 years in jail for a crime he did not commit and you
had this exculpatory information at your disposal and you did
not say anything about it. Why?
Judge Harrington. In brief, sir, I reviewed the logs in
April and May 1967. There was one reference or two to the
Deegan case. When the indictment came down 5 months later I had
no memory of this particular reference. But if I had--if I
had--it would have been consistent with my general
understanding of the Deegan prosecution; namely, that it was an
authorized hit emanating from Providence and concurred in by
the Boston faction.
Mr. Burton. I understand that. But two of the people that
were involved in the hit, Barboza and Flemmi, were never
prosecuted for that and innocent people went to jail. And that
information that you had was never brought out. So 30 years of
a man's life went by and some other people's lives went by. I
cannot understand when you did read that it did not ring a bell
in your head saying why in the world was this not brought out
in the trial.
Judge Harrington. Because, Mr. Chairman, I did not know the
details of Baron's testimony in the Deegan case and at the time
of that trial I had no memory of this one reference or two
references to the Deegan case in logs that I had checked out 5
months earlier. I just didn't.
Mr. Burton. I am not going to belabor this. But you were
trying to nail this mob boss and you knew this conversation----
Judge Harrington. It was the policy of the U.S. Department
of Justice.
Mr. Burton. I know. But you were trying to nail this mob
boss and you knew he had this conversation with these two
people, and you are telling us that you just forgot it and 5
months later you did not remember it. That does not make any
sense because he would have been complicitous in a murder
because he authorized the hit. And you are telling us you
forgot that 5 months later and that is why you did not bring
this exculpatory evidence out.
Judge Harrington. The proof that I forgot it is that if I
had remembered I think I would have gone to Garrett Byrne and
said how come you are not prosecuting Raymond Patriarca for
murder. The fact that I did not do it proves that I had no
memory of this reference 5 months earlier.
Mr. Burton. Well, that does not sit with me because I do
not think you would have forgotten that.
Mr. LaTourette. Mr. Chairman, before you yield to Mr.
Tierney, could I just ask a procedural matter, with Mr.
Tierney's indulgence.
Mr. Burton. Sure.
Mr. LaTourette. I heard the Judge in your questioning talk
about the fact that the Department of Justice came to him with
a 30 to 40 page prosecution memorandum to help refresh his
recollection after our counsel met with him in December. And my
question is, do we have a copy of that? Then the question I
have is--and I took in response to Mr. Barr's questioning of
Mr. Rico and his previous observation that he is not going to
answer any questions and he is going to invoke the fifth
amendment. I see on the second panel you have a member of the
Department of Justice. I think it is unusual that the Justice
Department will not give to the Congress of the United States
these documents, however they are giving them to people who are
about to appear in front of us. I do not have any problem with
the Judge reviewing his own memo from 35 years ago. But my view
would be that if the Judge can see it, I cannot quite figure
out why we cannot see it, too, as we go through the questioning
of Judge Harrington today.
There is also some questions about redactions that have
been made by the Department of Justice in some of these
reports. This Member, speaking only on behalf of myself, would
find it instructive to perhaps replace the silent Mr. Rico with
the member from the Department of Justice so that we have Judge
Harrington and the Department of Justice side by side on the
same panel so we can explore those issues.
Mr. Burton. I think that makes sense. Mr. Rico is not going
to testify today because of his fifth amendment rights. So why
don't we excuse you now, Mr. Rico, you and your counsel.
And let's have the Department of Justice come up and we
will swear him in right now. And then we will let the members
of the panel quiz them side by side. We will stand in recess
for just a moment.
[Recess.]
Mr. Burton. The attorney for the Justice Department will
come forward. If he chooses not to--because this information,
for the media and for everybody, this information was given to
Judge Harrington over 2 weeks ago and the Justice Department
decided to let us see it last night knowing full well that we
would not have time to digest everything. And so the attorney
for the Justice Department will come forward now or else we
will move on a contempt citation. This stuff has got to stop. I
do not know what the heck is going on over there, but this is
nonsense.
Let me swear in the witness, Mr. Bybee.
[Witness sworn.]
Mr. Burton. OK, I think Mr. Tierney is next.
Mr. Tierney. Thank you, Mr. Chairman. Judge, let me ask
some questions from another point in time in this process.
While the prosecution was going on in California with respect
to the allegation and what turned out to be the murder of Clay
Wilson by Mr. Baron [or Mr. Barboza]. There is information that
you went to California and had a visit with Mr. Barboza while
he was in prison.
Judge Harrington. I did.
Mr. Tierney. What occasioned that visit?
Judge Harrington. I was sent out there by the Organized
Crime Section of the Department of Justice to determine whether
Baron had been set up on this charge; namely----
Mr. Tierney. Not to be rude but we only have 5 minutes so I
want to try to get this where I want to go.
Judge Harrington. Sure.
Mr. Tierney. And I do not get a chance to go after judges
often so we get them to do what we want to do. Who contacted
you and asked you to go? Who, specifically?
Judge Harrington. I think it was either James Featherstone
or Bill Lynch, who at that time were running the Organized
Crime Section of the Department of Justice. But in view of the
fact that Baron was charged with a murder and he was such a
significant breakthrough in the Government's effort in
organized crime, and we knew that the organization was going to
retaliate against him, either kill him, as they ultimately did,
or get him in trouble, our first decision was to determine
whether he was in fact involved in this murder. So I went out
there to speak with him to find out if this was a set up, are
you being framed, or were you involved.
Mr. Tierney. Do you think it was a little unusual that you
went out there without first contacting the prosecuting
attorney involved in that murder case?
Judge Harrington. I think that has been overblown. It was
my intention to find out first what the situation was and then
immediately report to the District Attorney's office. I had no
reason not to go to him. But my main responsibility was to
determine whether Baron was being framed. Here is a man who
after 6 years of the Department of Justice conducting
intelligence gathering but had not had one single case, we see
Baron, the first witness in the Witness Protection Program,
involved with being charged with murder. We had to go out and
find out whether he was in fact involved. And that was my
purpose.
Mr. Tierney. But knowing his background, it could not have
been a surprise to you that he was charged with a murder.
Judge Harrington. Well, I thought that after he joined the
Witness Protection Program that maybe he would try to stay
within the bounds of the law. It is obvious that a mistake was
made. However, the Witness Protection Program was authorized by
the Congress of the United States because they saw that in the
long run we are going to have some failures but overall it has
been an effective tool against the organized underworld.
Mr. Tierney. At the same time you went out to see Mr.
Barboza, you did not even contact his lawyer to tell him that
you were going to see him in person. Is that right?
Judge Harrington. I think on that first trip I did meet
with his lawyer.
Mr. Tierney. Before you saw Barboza?
Judge Harrington. In conjunction therewith. I do not know
who I saw first. I wanted to see Baron first myself. But on
that, it is my memory that in conjunction with that visit I
spoke with both the District Attorney and----
Mr. Tierney. But they may well both have been after you saw
Barboza?
Judge Harrington. There is no doubt I saw Barboza first.
Mr. Tierney. OK. At the time you went out there, did you
know that the prosecuting attorney had already written to both
FBI Director Hoover and U.S. Attorney Mitchell indicating his
concerns about the fact that you and FBI agents might be going
out there to testify in that trial?
Judge Harrington. I do not know when I knew that. But I
knew that the prosecuting attorney was not happy with the
Government's effort to support Baron.
Mr. Tierney. In all of your career, on how many occasions
did you testify as a character witness for a murderer?
Judge Harrington. Well I never testified as a character
witness. What I testified to was the extent of his cooperation
with the U.S. Government. I never said that Joe Baron was a
good fellow.
Mr. Tierney. In all of your career, how often did you
testify to somebody's involvement in the program or with the
Government?
Judge Harrington. Well, I think it was the only so-called
accomplice witness who after he had been developed was engaged
in a murder trial. So I would say he was the only one.
Mr. Tierney. How is it the decision was made that you and
the FBI agents would actually take the step of testifying for
the defense in that trial?
Judge Harrington. We were subpoenaed, first of all. I have
my subpoena right here.
Mr. Tierney. Were you a reluctant witness, Mr. Harrington?
Judge Harrington. I was not. I was subpoenaed because
defense counsel wanted us, and, second, I was authorized by the
Attorney General under explicit instructions. So my appearance
out there----
Mr. Tierney. Did those instructions, your authorization
from the Attorney General come after the Attorney General was
contacted in writing by the prosecuting attorney expressing his
concerns?
Judge Harrington. I do not know when the prosecuting
attorney wrote that letter to the Attorney General. But I was
accepting my orders from the Attorney General and the Organized
Crime Section. They thought it was an important effort at that
time. And the reason why it was important is because we sent a
signal for the first time to the underworld that the Government
would abide by its commitments. And in so doing, many
accomplice witnesses were developed in New England and
throughout the United States.
Mr. Tierney. At the time you testified in that Wilson trial
in California, what was your knowledge about Mr. Barboza's
criminal involvement at that time? Did you have an idea of how
many murders he had been implicated in?
Judge Harrington. I think he was reputed to have been
involved in at least 20 murders.
Mr. Tierney. And knowing that, it was still the
determination of the Department to send you and FBI agents out
to testify at that trial?
Judge Harrington. It was. And it seems in retrospect
different. But this was in the early days of a national
governmental effort to root out a national scourge, and Baron,
being what he was, was the only type of individual who would be
able to provide the evidence necessary to convict major
racketeers.
Mr. Burton. Let me, before I yield to Mr. Horn, ask two
quick questions. You were subpoenaed by the defense to testify.
Was that after you went out to see Mr. Barboza?
Judge Harrington. After I went out?
Mr. Burton. Yes.
Judge Harrington. Oh, yes. I was subpoenaed for the trial
which took place I would say 6 months later.
Mr. Burton. After. And the FBI agents, I do not know if
they were subpoenaed or not, do you know about that?
Judge Harrington. I am sure they were subpoenaed. I think
they were subpoenaed.
Mr. Burton. OK. So you go out and you meet with a man who
is on trial for murder who has killed 26 people, and after you
meet with Mr. Barboza you talk to his defense counsel, and the
defense counsel knows a U.S. attorney very prominent in Boston
is out there on Barboza's behalf, and then he subpoenas you. It
sounds to me like you were subpoenaed because he knew you were
going to be a friendly witness because you were out there
seeing Barboza.
Judge Harrington. There is no doubt about it.
Mr. Burton. Yes. So you probably would not have been
subpoenaed if you had not gone out there?
Judge Harrington. That is true. But it was a judgment of
the Department of Justice, for the reasons I gave in my opening
statement, that we wished to support this person.
Mr. Burton. Did you suggest to the defense counsel that you
would be willing to be a witness if you were subpoenaed?
Judge Harrington. I am sure I did.
Mr. Burton. Ah. OK. Now the other thing I want to ask is,
obviously when you are dealing with the underworld and you have
an informant that is going to cooperate in exchange for
leniency and you are going to put them in the Witness
Protection Program, obviously you want to help them for past
offenses. The big problem is he killed 26 people before that.
You were out there after he was put in the Witness Protection
Program and he murdered another person. If a person is in the
Witness Protection Program and you have given them free rein
because they are cooperating with you, have cooperated in the
past, why do you excuse another murder? And how many will you
excuse before you take them to task? How many times do you go
to defend these crudballs?
Judge Harrington. All I can say is that he was the first.
He was more significant than most accomplice witnesses. He was
the breakthrough. He was a very significant figure not only in
the fight against organized crime, but in the establishment of
the Witness Protection Program. He was somewhat unique, Mr.
Chairman.
Mr. Burton. Judge, Judge, Judge, the guy murdered 26
people. I can understand you working with him, putting him in
the Witness Protection Program. But then he murdered another
guy, and maybe more than that, and you are out there defending
him. You got him into a prison on a 5-year sentence for a
murder that was a slam-dunk murder case and then he was out in
about 3 or 4 years. And when he was in prison his attorney told
us yesterday he was making calls on a regular basis like he was
at some country club, he was smoking marijuana while he was in
there. He had the life of Riley. And he was out early. He
killed this Mr. Wilson and God only knows who else he might
have killed. I can understand working with these crudballs to
get other crudballs higher up the food chain. But he had
murdered another person and you are out there defending the
guy.
Mr. Horn.
Mr. Horn. Thank you, Mr. Chairman. We have already had
exhibit No. 18 and I just want to get moving. On December 20,
committee staff interviewed Judge Harrington and, Judge, you
told the staff that you were not privy to the information that
Barboza was providing to Rico and Condon. But 3 days ago Judge
Harrington made the following statement to Boston reporter Dan
Rea, that is exhibit No. 18 that we showed already, and that
is, ``Barboza told the Bureau, and I was informed of it, that
all of the murders he was involved in, and Barboza was reputed
to be in over twenty murders, he would not testify in those
murders in which Jimmy Flemmi was involved.'' Judge, the
Justice Department apparently let you review some documents
between December 20th and this week, is that correct?
[Exhibit 18 follows:]
[GRAPHIC] [TIFF OMITTED] T8662.075
Judge Harrington. I do not think they let me review it.
They are conducting I think a concurrent investigation and they
questioned me about some of these matters that this committee
is. And during the course of the questioning they showed me
certain documentation. One such documentation was my pros memo
of 35 years ago, which when I spoke with your staff I had no
memory of. But in answer to your question, I hope that pros
memo is made public because it shows one thing; that as far as
the Federal Patriarca case was concerned, there was an
exhaustive enolization of the statute, the corroborative
evidence, and the credibility of Baron with respect to that
case. So I would hope that some day that pros memo is made
public.
Mr. Horn. Well, I can understand that. After December 20,
did you have any discussions with Justice personnel about any
documents relating to Barboza more than what we know about?
Judge Harrington. I do not know what you know. But they did
show me some informant reports that I was unaware of back in
1967, but not for the purpose of so-called prepping me for
these proceedings, but to undergo interrogation by them on the
same subject matter.
Mr. Horn. Now my understanding is that the statement that
was just part of exhibit No. 18, did you review the Patriarca
tapes and was there any information against Flemmi? What was
the statement on that, and were you aware of that?
Judge Harrington. When I spoke with the FBI Task Force
representative sometime in January I remember one log from the
Patriarca bug which showed that Baron-Barboza and James Flemmi
sought permission from Raymond Patriarca to kill Edward Deegan.
I did see that.
Mr. Horn. When Barboza was interviewed were Federal
officials always with him?
Judge Harrington. When Baron was interviewed on the
Patriarca case those statements were taken by FBI agents. When
Baron was interviewed with respect to the State Deegan murder
case, those statements were taken by the District Attorney's
office.
Mr. Horn. Did you at that time have discussions with the
Suffolk County District Attorney, I assume that is Garrett
Byrne's office that you are referring to, and----
Judge Harrington. I am.
Mr. Horn. And regarding the information the FBI had
developed through informants and the secret Patriarca and the
Angiulo listening devices regarding the Deegan murder. I think
when you were going through the confirmation process to become
a Federal judge you pointed to the development of Barboza as a
cooperating witness as one of your major professional triumphs.
Were you always satisfied that Barboza was telling the truth?
Judge Harrington. I was.
Mr. Horn. We have exhibits No. 20 and 21, Mr. Chairman,
that I would put into the record.
Mr. Burton. Without objection.
[Exhibits 20 and 21 follow:]
[GRAPHIC] [TIFF OMITTED] T8662.081
[GRAPHIC] [TIFF OMITTED] T8662.082
[GRAPHIC] [TIFF OMITTED] T8662.083
[GRAPHIC] [TIFF OMITTED] T8662.084
[GRAPHIC] [TIFF OMITTED] T8662.085
[GRAPHIC] [TIFF OMITTED] T8662.086
[GRAPHIC] [TIFF OMITTED] T8662.087
[GRAPHIC] [TIFF OMITTED] T8662.088
Judge Harrington. Could I make one response, sir, on your
question that I do not think I fully responded to. Just Tuesday
of this week in the Boston Herald Jack Zalkind, the District
Attorney who tried the Deegan murder case, stated: ``I never
spoke with Edward Harrington with respect to this matter.''
Mr. Burton. We will come back to you.
Mr. Horn. Just one question, if I might.
Mr. Burton. OK. Sure.
Mr. Horn. How did you learn about Barboza's statement that
he would not give any information about Vincent Flemmi? How did
you learn that?
Judge Harrington. That was provided to me by the FBI agents
who spoke with Baron very early on. My statement and my opening
statement is that I never had any information regarding
informants, not that the FBI did not tell me something after
Baron had been turned as a witness.
Mr. Burton. Thank you, Mr. Horn. Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman. Judge Harrington, I
just asked a staff member to give you a memorandum, it is
exhibit No. 15. If you will just take a moment to review it. It
is entitled ``AirTel to the Director of the FBI from the SAC,
the Special Agent in Charge, in the Boston Office,'' and it is
the criminal intelligence program of the Boston division.
[Exhibit 15 follows:]
[GRAPHIC] [TIFF OMITTED] T8662.068
[GRAPHIC] [TIFF OMITTED] T8662.069
Judge Harrington. I have read it, sir.
Mr. Delahunt. The pertinent language there is, ``Informants
report that Ronald Cassesso, Romeo Martin, Vincent James
Flemmi, and Joseph Barboza, prominent local hoodlums, were
responsible for the killing. They accomplished this by having
Roy French, another Boston hoodlum, set Deegan up in a proposed
breaking-and-entering in Chelsea, Massachusetts.'' Again, this
is dated March 19, 1965. It is your testimony--let me pose the
question to you, you never saw this memorandum?
Judge Harrington. Never did. In fact, I just note the date
was March 19, 1965. At that time, I was a trial attorney with
the Department of Justice here in Washington. I came to Boston
as an assistant U.S. attorney approximately 10 days later. But
to answer your question, I never saw it.
Mr. Delahunt. But even during the course of your
prosecution of Patriarca and your efforts in terms of dealing
with organized crime?
Judge Harrington. My memory is that I never saw this
informant report.
Mr. Delahunt. In this case there is no reference to Joseph
Salvati, there is no reference to Peter Limone, there is no
reference, and if someone could help me with those that were
charged with the Deegan murder, I think there are two other--
Louie Greco and Henry Tameleo, there is absolutely no reference
to those four individuals.
Judge Harrington. Not in this informant report. But I do
not think, on review of the Supreme Judicial Court's opinion in
the Deegan murder case, that anybody ever claimed that Peter
Limone and Henry Tameleo, major figures, had anything to do
with the actual killing.
Mr. Delahunt. Right. Let me suggest to you that Special
Agent Dennis Condon testified in the State case on Deegan. You
know that Special Agent Rico and Dennis Condon worked together
in tandem over a long period of time.
Judge Harrington. I do know that, yes, at least during this
era. I know later Mr. Rico teamed up with Mr. Robert Sheehan.
Mr. Delahunt. Right. In your opinion as a trial lawyer, as
a judge, as a former prosecutor, this particular memorandum one
would consider, in terms as it relates to Mr. Salvati, and I
mention him because he is present here today, this would be
considered an exculpatory report.
Judge Harrington. I would concur.
Mr. Delahunt. And if you had knowledge of the existence of
this memorandum, you, as an officer of the court, as an
attorney sanctioned to practice in Massachusetts, as a member
of the Department of Justice, would have disclosed this to
counsel for Mr. Salvati. Is that a fair statement?
Judge Harrington. I think I would have.
Mr. Delahunt. Because you would not have wanted to see an
innocent man go to jail.
Judge Harrington. There is no doubt about that.
Mr. Delahunt. You are aware that subsequently the former
Director of the FBI for the past 6 or 7 years, Mr. Freeh
acknowledged that what occurred to Mr. Salvati was an injustice
after reviewing all of the documents. Maybe you are not aware
of that.
Judge Harrington. I am not.
Mr. Delahunt. You also say in your opening statement that
throughout your tenure as a Federal prosecutor you never knew
the identity of any FBI informant.
Judge Harrington. That is correct.
Mr. Delahunt. In retrospect, and, Mr. Harrington, I know
things look different in retrospect, I think we all look back
and maybe would have done some things different, this committee
is interested in developing and crafting policy to ensure that
justice is done and that the guilty are prosecuted and are
removed from society if they are dangerous to society and, at
the same time, that the innocent people are protected.
Judge Harrington. I concur.
Mr. Burton. The gentleman's time has expired. We will come
back. We will have a second round.
Mr. Barr, I took most of your time before. Why don't I
yield to you what time I had, and then we will go to Mrs.
Morella.
Mr. Barr. OK. I will just take part of your time, Mr.
Chairman, because I know you probably have some additional
questions also.
Early this morning, Judge, we played exhibit No. 18, which
was your statement to a TV reporter earlier this week that
Barboza had told the Bureau, and that you were informed of it,
that all the murders he was involved in, and Barboza was
reputed to be in over 20 murders, but that he would not testify
in those murders in which Jimmy Flemmi was involved. There was
also information from the microphone surveillance that Flemmi
was involved in the Deegan murder. Given the fact that the
Government knew that Flemmi was involved in the Deegan murders
and that Barboza was saying that he would not testify in any
way that could implicate Flemmi, what was the implication of
Barboza's statements? Is it not a clear implication that he was
going to lie, that he would not tell the truth?
Judge Harrington. Well, in review of the case called
Commonwealth v. Limone that came down from the Superior Court
in 2001, Judge Hinkle in that case indicated that Baron
testified in the Deegan case that Flemmi was involved in the
scheme. The fact that Flemmi was not named as a defendant,
there could have been a lot of reasons, but I think that
question should be propounded of the District Attorney who made
that judgment and not an assistant U.S. attorney who had
nothing to do with the case.
Mr. Barr. You have testified that you stand by your
statement that you are always satisfied that Barboza was
telling the truth. And yet, you have to know that he was not.
Judge Harrington. I do not know that.
Mr. Barr. Really?
Judge Harrington. But with respect to the case that I was
intimately involved in, I am convinced that he was telling the
truth.
Mr. Barr. In that case maybe.
Judge Harrington. In that case. With respect to the Deegan
case, I had no knowledge----
Mr. Barr. But you have testified under oath that you are
satisfied that Barboza was always telling the truth.
Judge Harrington. In the cases that I was involved in. But
even now----
Mr. Barr. That was not the question that was just asked of
you before. I do not want to speak for Mr. Horn, but I do not
think he asked you if in the cases in which you were intimately
involved were you always satisfied that Barboza was telling the
truth. Your testimony and your confirmation and your answer to
the question that Mr. Horn propounded just a few moments ago
was were you always satisfied that Barboza was telling the
truth, and you said, yes. Yet it seems clear I think to anybody
that he was not telling the truth.
Judge Harrington. I do not think that is true. I think if
you review the testimony in the Deegan murder case, you will
find out one thing--that Baron did not stand alone. John
Fitzgerald testified. Stats testified. Glavin testified. Baron
was on the stand for 8\1/2\ days. If I had to look at it just
from a review of the Supreme Judicial Court's opinion, which I
have done in the last 5 weeks, I have learned more about the
Deegan murder case in the last 5 or 6 weeks than I have known
in the last 35 years, but he was on the stand for 8\1/2\ days
and he was corroborated to some degree by three other
witnesses. So at this time, I am not prepared to say that Baron
lied in that case. But I was not involved in it and I did not
know the----
Mr. Barr. A man served 30 years for that murder that we all
know he did not commit. And we know that Barboza could have
testified and had testimony that could have cleared Mr. Salvati
and that he did not testify that Flemmi was responsible or
implicated or involved in that murder. How can you sit there
and defend this guy, Judge?
Judge Harrington. I am not defending him.
Mr. Barr. You are saying that you still believe that he is
a truthful man.
Judge Harrington. All I am saying is that I think the
question would be better propounded to the individual who made
the prosecutorial decision on what defendants to proceed, and
not me.
Mr. Barr. When Barboza was interviewed, is it not true that
Federal officials were always with him?
Judge Harrington. I cannot answer that question. But I will
tell you this, that I was never, I was never involved with any
questioning of Joseph Barboza-Baron with respect to the Deegan
murder case.
Mr. Barr. I am asking is it not true that Federal agents
were always with him when he was interviewed?
Judge Harrington. I cannot answer that. I do not know.
Mr. Barr. You do not know.
Judge Harrington. I do not know.
Mr. Barr. Would that not be standard practice?
Judge Harrington. I would think--now let me go back. I
would think since Baron had been turned by Federal agents that
they at least would have been there as introduction to the
State District Attorney's representatives who would have taken
his statement. I would think so. I was not there, but I think
that would be the approved practice.
Mr. Burton. Let me just say that we have limited time left
before there is a vote on the floor. So if those members want
to go and come back, we will get right back to questioning. And
Mr. Barr, if you go vote, maybe you could come back and take
the Chair because I am going to stay here a few more minutes,
and then you can take the Chair when you get back and then go
right to Mrs. Morella and then to Mr. LaTourette. We have two
votes I understand.
Let me just ask you this question, Mr. Harrington. You said
you do not remember much about what happened 30 years ago. This
information on the duration of the trial, the State trial, did
you get that from the Justice Department? Is that stuff you
just reviewed just recently?
Judge Harrington. No. What I did since I met with your
representatives, and I met with them fairly cold on December
20, I have read all the cases regarding this, not only the
Supreme Judicial Court's case in the so-called Deegan murder
case, and all the motions for the new trial. So as I indicated,
I am familiar with the case now; 35 years ago I was not.
Mr. Burton. You did not follow the case? It was a pretty
famous case.
Judge Harrington. I followed it in the paper but I had my
own case.
Mr. Burton. I understand. But I want to go back to this one
point and then we will recess.
Judge Harrington. Sure.
Mr. Burton. And that one point I want to go back to is you
had exculpatory evidence that you had heard. You heard Flemmi
and Barboza talking to Patriarca asking if they could murder
Deegan. You could have prosecuted him for murder on that case.
You knew that. I cannot believe that you say 5 months later you
forgot that, because you were after Patriarca, you were after
him and you heard two people talking about getting permission
to murder Deegan, and you are saying you forgot that. And if
you had that and you were following this case in the paper, you
had to know you had exculpatory information that you were
keeping from that State trial. And that really is almost----
Judge Harrington. It is not exculpatory information, to
tell you the truth.
Mr. Burton. Why wasn't it exculpatory?
Judge Harrington. Because it was consistent with my general
understanding of the prosecution that it was a sanctioned hit.
Mr. Burton. Yes. But do you mean to tell me you do not
think the defense counsel for Mr. Salvati and others would not
have been able to make a stronger case if two people that were
not on trial were brought forward, Mr. Barboza and Mr. Flemmi?
Judge Harrington. It was available to them. It was.
Mr. Burton. Well even though it was available to them, they
may have been tied in with the mob themselves. Who knows? How
do you know it was available to them?
Judge Harrington. Because under court order in the
Patriarca case the two defense counsel were provided access to
the logs so that they could move later for a motion to dismiss
the Patriarca case because it was tainted. That would have been
the ground.
Mr. Burton. How do you know that everything was made
available? Did you see it? How do you know?
Judge Harrington. Because I participated in the trial. I
think the court allowed--I think the court, and I was so
advised by the FBI when I talked with them, that the trial
court in the Patriarca case made the logs available.
Mr. Burton. Who told you that, Condon?
Judge Harrington. No. The Task Force who I spoke with just
in the last several months.
Mr. Burton. Oh, they told you that.
Judge Harrington. They told me during the course of their
inquiry.
Mr. Burton. I see. Why was the Patriarca case different
than the Taglianetti case?
Judge Harrington. In Taglianetti, the only thing that was
made available in Taglianetti was a certain segment of the so-
called Patriarca logs. They were made public. The Taglianetti
case was tried in Rhode Island. I had nothing to do with that.
With respect to the Patriarca case, since it was well known
that the FBI had illegally bugged Patriarca's office, in order
for the defendants in the Patriarca case to file a motion to
dismiss or a motion to suppress, they were allowed by the trial
counsel in the Patriarca case to have complete access to all
the logs so that they could bring a motion to dismiss or
suppress. And they had it.
Mr. Burton. Well, I think we need to find out if those logs
were made available to the defense counsel. If they were and it
was not brought up in the case, there has got to be something
funny that went on there, otherwise why would they not have
brought that up. And the other thing is there is still one
issue that I do not think is going to be resolved, and that is
you had this information that Barboza and Flemmi were involved
in that hit, you had information that Patriarca gave his
consent for the hit, and you were reading all about this in the
paper and nothing was ever said by you that might have helped
keep these guys out of jail for 30 years.
Judge Harrington. It was consistent. It showed it was a
sanctioned hit.
Mr. Burton. Yes, but you did not know that all these four
people were involved in the hit. You knew that Barboza was and
you knew that Flemmi was and that was never brought out in the
court. You knew that information and you knew Patriarca gave
his OK and you were trying to nail this guy to the wall. Why
were Patriarca and Flemmi not involved in the prosecution?
Judge Harrington. That is the question that should be asked
to the District Attorney who was involved in the murder
prosecution. If I had known, if I had remembered the reference
to Patriarca in the Deegan murder case, I would have asked
Garrett Byrne. But I am saying that establishes that 5 months
later that one reference or two references in the logs I had
completely forgotten. I would have loved to have seen Patriarca
charged with the murder case.
Mr. Burton. Your whole purpose was to nail Patriarca to the
wall. And here you have him giving authority to kill somebody
and you are telling me that 5 months later you forgot that? I
cannot understand how you could forget that. Anyhow, we will
talk about that later.
We stand in recess. We will be back in about 15 minutes.
[Recess.]
Mr. Burton. We will reconvene the committee.
Mr. LaTourette, we will recognize you for questioning.
Mr. LaTourette. Thank you very much, Mr. Chairman. Mr.
Bybee, when we were chatting with Judge Harrington earlier and
he talked about a pros memo from 1967, and we can explore with
him later whether he read it from page to page or whether he
was just shown it and reviewed it, but anyway it appears that
the Task Force has shared this prosecution memo from 1967 with
Judge Harrington in the course of an investigation. Are you
familiar with that set of facts?
Mr. Bybee. Yes, I am.
Mr. LaTourette. OK. Are you aware whether or not the
Justice Department Task Force investigating this issue has
reviewed any of the 10 other documents, deliberative memoranda
that are being withheld currently from this committee by the
Department of Justice?
Mr. Bybee. I cannot comment on matters that are under open
investigation, Congressman.
Mr. LaTourette. OK. So you are not answering the question.
You are saying that you are prohibited somehow from answering
my question?
Mr. Bybee. Well I think it would be inappropriate for me to
comment on matters that are under open investigation by the
Joint Task Force.
Mr. Burton. Excuse me. Would the gentleman yield just a
moment?
Mr. LaTourette. Certainly.
Mr. Burton. Now we have been trying to get these documents
for a long time and you are now hiding behind this is under
investigation so we cannot see those documents. Is that what
you are saying?
Mr. Bybee. No, Mr. Chairman, that is not what I am saying.
Mr. Burton. Well we got one document yesterday.
Mr. Bybee. Yes.
Mr. Burton. Why did we see that?
Mr. Bybee. Because the committee gave a demonstrable effort
to the administration for the need for that document.
Mr. Burton. We did not ask for review of the document
first. We said we wanted to see the document and you let us see
it. Now you are saying the other nine documents that we
subpoenaed we cannot get because it is under investigation.
Mr. Bybee. No.
Mr. Burton. They were all 10 subject to the investigation.
Mr. Bybee. Mr. Chairman, I believe you have asked a
different question than what the Congressman asked me, at least
I answered the question I thought he asked me. I will be happy
to answer your question. With respect to the remaining nine
documents, Mr. Chairman, we will be happy, and we have
indicated in repeated letters to the committee, the
administration will be happy to sit down with the committee and
discuss your need and our interests in those documents. That
process would be a very salutary process for both of us in
trying to accommodate the needs of the committee. And those are
our instructions from the President.
Mr. Burton. Well, we will have to talk to the President
about that. Because those documents we want to see, we do not
want your interpretation of them.
Go ahead, Mr. LaTourette.
Mr. LaTourette. Thank you. Mr. Bybee, that actually leads
to my next question. I understood your response about the Task
Force. But the executive privilege that the President claimed
on December 12th, he said he has decided to assert executive
privilege with respect to these documents and to instruct you
``not to release them or otherwise make them available to the
Committee.'' You are aware of the Order of the President of the
United States to the Department of Justice?
Mr. Bybee. Yes, I am.
Mr. LaTourette. Well yesterday, as the chairman indicated,
the Justice Department shared with our staff 1 of those 10
documents. And my question to you is, is it your understanding
that the President of the United States has withdrawn his
executive privilege claim as to these 10 documents?
Mr. Bybee. No, Congressman, the President has not withdrawn
his claim of executive privilege. In that same letter,
Congressman, the President also instructs us, consistent with
separation of powers, to meet with the committee and to try to
accommodate our mutual interests. And we have been prepared to
meet with the committee to sit down and discuss what your needs
are for these documents and see if we can work something out.
Mr. LaTourette. Mr. Bybee, I do not have any difficulty
with that and I favor meetings and I have met with
representatives of the Justice Department. I think meetings are
great things. But I am not one to parse words and I really am
interested when the President of the United States instructs
you not to release them, I understand you have not released
them, but you are not to otherwise make them available to the
committee, isn't that what you did last night?
Mr. Bybee. Well, again, with respect to one document as to
which we felt that the committee had demonstrated its need, we
shared the document with the committee. It was not left in the
committee's possession, it was shared with you last night.
Mr. LaTourette. And you believe that that activity does not
otherwise make it available to the committee in contravention
of the President's executive privilege claim?
Mr. Bybee. That is the way that the Executive has
historically accommodated the committee.
Mr. LaTourette. OK. Now again in response to the chairman's
question, Assistant Attorney General Bryant, who I think was
with us last week, states that ``the Committee has now
demonstrated a particular and critical need for access to the
Harrington memo and that satisfies the constitutional
standards.'' Can you explain to us what it is that we all did
on the committee that all of a sudden we are able to meet this
high bar that we were not able to meet a week ago?
Mr. Bybee. It is a combination of different things,
Congressman, including the chairman's letter to the Department
of Justice this week that indicated the witness that was coming
forward and demonstrated--I can pull the letter here--but there
was language in there that satisfied us that you had a
particularized need for that document. And we indicated to the
committee that on that basis we were willing to meet with you.
Mr. LaTourette. And the fact that Judge Harrington was
going to appear today, is that what distinguishes this
memorandum from the nine documents that we have requested?
Mr. Bybee. Well, that would be a contributing factor. It
would not be the only factor.
Mr. LaTourette. Can you tell us what the other factors are
so we can try in this committee to satisfy whatever this high
standard is?
Mr. Bybee. Congressman, we will be happy to meet with you
and talk with you about those remaining documents and about the
interest of the committee in those.
Mr. LaTourette. Well, I have to tell you, Mr. Chairman, I
would hope that you would draft a letter to President Bush
because in my mind this says that they are not supposed to make
the stuff available and they have now made some of the items
available to us based upon a showing that I cannot find a
difference between the showing that you might have made in this
letter, it must have been a great letter you wrote last week,
because I do not see any difference between our needs this week
and last week. And I think what I expressed last week, in an
unartful way, and I apologize for being coarse in my language
last week, but it occurs to me what has occurred is that we do
not have the President of the United States making the
decision, we have assistant attorneys at the Department of
Justice figuring out when it is the U.S. Congress has satisfied
the requirements of the President of the United States.
I am at a total loss to figure out how that fits under any
scheme that is appropriate. And I would hope you would perhaps
contact President Bush and ask him to look into this matter for
us. I thank you for your courtesy.
Mr. Burton. If the gentleman would yield the balance of his
time to me. Let me just say it was not until it became apparent
that Judge Harrington was going to be here and you folks at the
Justice Department had already shown Judge Harrington the
document in question that you probably knew that we might find
out that you were showing witnesses before this committee
information that you would not share with the committee and
that would have been embarrassing as the dickens to you,
wouldn't it?
Mr. Bybee. Mr. Chairman, the Joint Task Force is conducting
an investigation of the matters surrounding the handling of FBI
informants in Boston.
Mr. Burton. Right.
Mr. Bybee. Judge Harrington evidently, I am not part of
that Task Force, is relevant to that investigation. They are
talking with him on their schedule.
Mr. Burton. Well they went up and they gave Judge
Harrington access to the document that you gave to us last
night.
Mr. Bybee. Right. It was the----
Mr. Burton. Now you do not think it would have been
embarrassing for the committee to find out today that Judge
Harrington reviewed these documents that you would not give to
the committee because the President said that it should not be
given to anybody because of the national interest, you do not
think that would have been embarrassing?
Mr. Bybee. Mr. Chairman, in the course of the Joint Task
Force investigation, they showed Judge Harrington a document
that he had authored.
Mr. Burton. Yes?
Mr. Bybee. That is a responsible way for prosecutors to
behave in refreshing the recollection of people that they are
interviewing.
Mr. Burton. You guys just really get to me, I swear. It is
funny. [Laughter.]
You know, do you want me--you just tell me whether you want
me to do this or not because I am willing to do it--do you want
me to get all the Democrats in the House and about 30
Republicans to move a contempt citation against the
administration to force you to give us these documents? Do you
want me to do that?
Mr. Bybee. No, Mr. Chairman.
Mr. Burton. Well that is what we are going to do if you do
not give us the documents. I do not know what is wrong with you
guys. We are responsible for the oversight of the executive
branch, all areas of the executive branch. And you guys are not
above congressional scrutiny. Now we have put an innocent man
in jail, our Government, for 30 years for a crime he did not
commit and you do not want us to find out why. And I want you
to know we want to see those documents.
We subpoenaed documents 6 months ago and last night you
dumped several thousand pages of documents on my chief
counsel's desk expecting us to go through those last night I
suppose. Well we did not have time, obviously. And you gave us
this other document to review yesterday and we did not have
time to really scrutinize that like we should. So we are going
to and we will probably haul you guys back up here again. And I
do not know why you want to go through this. Let us see the
documents.
Now if there is something there that you think should be
hidden from the American people or the Congress, then you have
got a problem. I mean, an innocent man and possibly other
innocent people across this country were put in jail. Now we
found out that there was a guy in Rhode Island that was put in
jail for 18 years by the Federal Government for a crime he did
not commit. We found out Mr. Salvati was put in jail for 30
years for a crime he did not commit. There were other people
that got the death penalty--the death penalty--which was
commuted to life in prison for crimes they did not commit. Now
granted, those guys may have been crudballs associated with the
Mafia, but they did not kill Deegan. They got the death
penalty. We want to find out if there are other people in this
country that are incarcerated or have been put to death by the
Justice Department for crimes they did not commit. And you guys
are obstructing justice, in my opinion, by not giving us those
documents.
Now if you want to go through this week after week for the
next year, then you can do it. And if you want me to go to the
floor of the House and have to fight with my own party, a lot
of the people in my own party to get these documents, I am
willing to do that as well. Now I do not think you want to do
that. You guys are nuts. In fact, if you have any doubt, ask
these gentlemen right here if I can get every Democrat to sign
this. Ask them. And I will tell you how many Republicans I can
get to sign this thing to force this issue to the floor.
Are you ready, Mr. Tierney?
Mr. Tierney. Thank you. I am not going to spend a lot of
time with you, sir, because I just think what happens is we get
from the Department a bunch of professional witnesses up here
to stonewall on what I think is a ridiculous claim of executive
privilege that is nonsense. I think the chairman has made it
clear pretty much where that is going and we will deal with
that another time. But we do have with us this morning Judge
Harrington and I think we will take this opportunity to
continue to question him.
Judge, what is it about Barboza's background that you
shared with the prosecuting attorney in the Clay Wilson case
when you went out there before the trial?
Judge Harrington. With the prosecuting attorney?
Mr. Tierney. Right.
Judge Harrington. I think, again, I think what I shared
with him what I testified to on my approximately 10 minutes on
the stand; namely, the extent of his cooperation with
prosecuting authorities in their effort against organized
crime.
Mr. Tierney. Did you tell him that he was implicated in
some 20-odd other murders elsewhere?
Judge Harrington. I do not know if I told him that but I
think it was understood that he was a hit man for the Mafia.
Mr. Tierney. And you would not have gone into detail with
him about all of the background you had on this individual
knowing he is prosecuting the guy for murder?
Judge Harrington. Again I am drawing on my memory, but I
think it was understood that he was a professional killer. But
it was the judgment of the Department of Justice at that time
that more important than professional killers were those
leaders of the organization who could reach out and, if Baron
was not around, there would be other professional killers to
carry out their contracts.
Mr. Tierney. You knew all the evidence that had been
compiled against Barboza in the Wilson case. You knew how
strong a case that was against him?
Judge Harrington. I have to admit I knew he was involved in
killing Wilson. I think his defense was self-defense. I did not
go into the details of that murder case because my involvement
as a witness was very limited.
Mr. Tierney. So you are saying it would not have mattered
to you one way or the other. This guy had an incredibly strong
case by his own attorney's account against him in a prosecution
for involvement in this murder. Knowing that you are going out
there with a couple of FBI agents to testify, you do not think
it is important as to whether or not your testimony might help
him get off from that charge or not, or was it in fact the
purpose of going out there to help him get off or get lighter
treatment in that charge?
Judge Harrington. Our job was not to get him off. Our job
was to fulfill our commitment on a singular witness, a person
who opened up for Federal authorities, their assault on the
underworld for the first time in the history of American law
enforcement.
Mr. Tierney. Regardless of the consequences?
Judge Harrington. Regardless of the nature of Baron. If
Baron was not a serial hit man, if would not have been
invaluable to prosecuting authorities.
Mr. Burton. Will the gentleman yield briefly.
Mr. Tierney. I will yield to the chairman.
Mr. Burton. Let me say, you say you thought it was self-
defense----
Judge Harrington. No, I did not say----
Mr. Burton. You say you thought it might be self-defense.
He was shot in the head, he was buried under a stump, and
Barboza allegedly made love to his wife right after the murder.
I mean, this guy is an animal. And you are out there and you
said you were told it might be self-defense. Bullet holes in
his head, buried under a stump, and his cellmate tells exactly
where the guy is, exactly where he is buried, how he was shot
and killed, and what he was wearing.
Judge Harrington. I did not say I thought it was self-
defense. I said that his defense was self-defense.
Mr. Burton. And you were out there defending him.
Judge Harrington. I was. But, Mr. Chairman, with the
authority of the Attorney General of the United States.
Mr. Tierney. So let me follow that for a second. The
Attorney General of the United States knows that this guy is a
serial murderer, knows that he is on defense for a murder that
more than likely he committed because of all the circumstances
the chairman stated, and you are telling us he then instructs a
member of the Justice Department and two FBI agents to go and
testify on behalf of this individual?
Judge Harrington. That is true.
Mr. Tierney. OK. And to your knowledge, did the Director of
the FBI also know that this was the scenario that was
unraveling?
Judge Harrington. I am sure he knew his two agents went
out.
Mr. Tierney. Further, did the attorney for Barboza in that
Clay Wilson murder case give you any reason to believe that
Barboza might not have committed the crime other than this wild
assertion that it was self-defense?
Judge Harrington. It was my understanding from talking with
the attorney that he was involved in the killing but his
defense was self-defense.
Mr. Tierney. You did not have any doubt the guy had
murdered him, had you? I mean, you knew the guy murdered
Wilson.
Judge Harrington. I knew he killed him. I did not want to
evaluate his defense.
Mr. Tierney. When you met with Barboza in California before
you talked to the prosecutor, before you talked to Mr. Miller,
his defense attorney, what transpired in that jail cell?
Judge Harrington. Well, I have to reconstruct it. But in
essence, I wanted to find out whether he was framed or was he
involved in it.
Mr. Tierney. So he told you he was involved in it, he was
guilty, right?
Judge Harrington. No. He told me that it was self-defense.
Mr. Tierney. But then you became familiar with the
circumstances of the case and you did not believe that for a
second.
Judge Harrington. It was irrelevant. I was out there----
Mr. Tierney. Please, Judge. You did not believe it. You are
a seasoned attorney at that time, you did not believe that at
all, right?
Judge Harrington. Well, if forced to answer, I would say I
would have thought that he killed him.
Mr. Tierney. Now did you report that back to the Director
of the FBI, or your superiors, or John Mitchell, or anybody
else that this guy that you have me going out there to testify
for is a cold-blooded murderer and he is guilty of this one
too?
Judge Harrington. They all knew it. That is why he was
important. He was a cold-blooded killer for the Mafia. That is
why we used him.
Mr. Tierney. When you were with Barboza in that jail cell
prior to his trial in the Clay Wilson case, did he tell you
that if you and the FBI guys or if the Government did not do
something for him in that trial he was going to rescind his
testimony or recant his testimony in the Patriarca or other New
England cases?
Judge Harrington. He did not.
Mr. Tierney. Did you have that fear?
Judge Harrington. No. But I will tell you this. I always
knew that it was a possibility for the reasons I said in my
opening statement; namely, they tried to bribe him, he could
not make a living on the outside so he had to curry favor with
the mob, and I think that if he offered to recant falsely that
it might keep him alive. But it did not keep him alive too
long. He paid the penalty for cooperating with the U.S.
Government.
Mr. Tierney. Are we going to have another round, Mr.
Chairman?
Mr. Burton. We will have another round.
Mr. Tierney. Fine. I will stop here then.
Mr. Burton. Mr. Horn, are you prepared or do you want to
wait a minute?
Mr. Horn. Thank you, Mr. Chairman. Let's go into after the
acquittals in the Rocco DeSeglio murder trial. After the
acquittals there, did you have any concerns regarding Barboza's
credibility?
Judge Harrington. No. I think an evaluation of the DeSeglio
murder case at the time depended primarily on the technical
ground of venue. I think the jury was charged that the murder
had to have been completed in one county--and the information
was that Baron testified very strongly in the DeSeglio case--
but it was on a technicality that an acquittal was rendered
because I think the jury found that the killing had taken place
in a county other than Suffolk. That is my memory at this time,
sir.
Mr. Horn. If so, were any steps taken to make sure
Barboza's testimony was corroborated in the upcoming Teddy
Deegan and William Marfeo murder trials?
Judge Harrington. With respect to the Federal Marfeo case,
he was corroborated. And although, again, I had nothing to do
with preparing him for trial in the Deegan murder case, from
reading the opinion in the Supreme Judicial Court's opinion in
the Deegan murder case three other individuals testified in
support of Baron's testimony, namely, attorney John Fitzgerald,
Stathopoulos, an individual who was there the night of the
murder of Deegan, and another individual by the name of Glavin.
So there was some--and it just comes to mind, in the Boston
Herald of Tuesday of this week when the attorney who prosecuted
the Deegan murder case said that he had no conversations with
me with respect to that matter, he also said that it was his
judgment that Baron was strongly corroborated in the Deegan
murder case. That was his testimony Tuesday of this week.
Mr. Horn. Since Barboza's testimony resulted in the
acquittal of all of the defendants in the DeSeglio murder
trial, did you have any concerns on using Barboza as your
principal witness at the William Marfeo murder trial?
Judge Harrington. Not at all because the Marfeo Federal
trial was a solid case. It was solid not only because Baron was
corroborated, but there were references in the so-called
Patriarca logs which tended to corroborate him. We felt very,
very strong on that Federal case. And my prosecutive memo which
was approved by the Criminal Division of the Department of
Justice proves that the Department of Justice thought that
Baron's credibility in that case was very strong.
Mr. Horn. Now, as I gather the history of it, the New
England Mafia, and others being the Deegan and DeSeglio murder
trials, Barboza was an unindicted co-conspirator whom they
allegedly tried to hire as the hit man to kill Marfeo. Unable
to use the information obtained from illegal wiretaps of
Patriarca's headquarters in Providence, the prosecutors had to
rely on the testimony of Barboza to obtain a conviction. Is
that your recollection?
Judge Harrington. That is true. That is true.
Mr. Horn. And there are quite a few here. You have got the
prosecution team along with yourself, Markum, Walter Barnes,
and Paul Rico and Dennis Condon were the two FBI agents largely
responsible for convincing Barboza to testify in this case. On
March 4, 1968, a jury found Patriarca, Tameleo, and Cassesso
guilty and a few days later they were each sentenced to 5 years
in prison and a $10,000 fine. You helped prosecute Patriarca,
Henry Tameleo, Ronald Cassesso for their involvement in the
William Marfeo murder. Is that accurate?
Judge Harrington. It is. It was a conspiracy to murder. The
reason it was a Federal case is that, unlike the Deegan murder
which was carried out, the Marfeo case did not result in a
murder of Marfeo at that time. It was merely a conspiracy to
travel interstate to kill Marfeo and that is why it was tried
in Federal court.
Mr. Horn. Barboza was not indicted for his involvement.
What deal was Barboza given in exchange for his testimony?
Judge Harrington. Part of what he was granted was he was
named I think as an unindicted co-conspirator. He was not named
as a defendant. We made the promise that the extent of his
cooperation would be brought to any sentencing authorities. We
also assumed the responsibility of after the termination of his
testimony that he would be relocated, provided a job, and
obtain a new identity. And that process formed the basis for
the Witness Protection Program which was later endorsed by the
Congress of the United States.
Mr. Horn. The Marfeo trial was really important, as our
records seem to show here. Raymond Patriarca was one of the
highest ranking Mafia bosses ever to be tried. The lead counsel
in the case said, ``If we did not win, it would be all over.''
And that was exhibit No. 25, Mr. Chairman, to put in the
record. If everything depended on Barboza, you must have been
very attentive to what was in the Patriarca tapes and logs to
make sure Barboza was telling the truth; is that correct?
[Exhibit 25 follows:]
[GRAPHIC] [TIFF OMITTED] T8662.094
[GRAPHIC] [TIFF OMITTED] T8662.095
[GRAPHIC] [TIFF OMITTED] T8662.096
Judge Harrington. It is correct, we were attentive to what
was in the logs. And he was I think the first of the Mafia
leaders to be convicted in the United States since I think
Frank Nitti was convicted in 1943.
Mr. Horn. Did you use any information obtained from the
Patriarca wiretap to help prepare for the Marfeo trial?
Judge Harrington. We did not. That would have been tainted
evidence and that was one of the reasons we reviewed the 3-
years of logs of the Patriarca bug to ensure that we did not
use anything that would taint our case.
Mr. Horn. And I take it you did not get much testimony out
of Barboza, is that right? Because after the Deegan trial, the
protective custody Witness Protection Program came about for
Barboza.
Judge Harrington. That is right. He indicated that he was
willing to testify in three cases, one Federal and two State.
Mr. Horn. That is an interesting program the Witness
Protection Program. Was it created strictly for Barboza or was
he the first one in it?
Judge Harrington. He was the first one and, as I indicated
in my opening statement, the experience gained in administering
his protection formed the basis for the Congress a year and a
half later to establish the program on a formal basis. And I
still think the program is in effect and is used quite
successfully over the years.
Mr. Horn. Who defined the terms and the conditions of a
person in the program, let's take Barboza, what was he supposed
to get out of this witness program?
Judge Harrington. I think it was formulated by a unit
within the Organized Crime and Racketeering Section of the
Criminal Division. At that time, I think it was, my memory is
it was Mr. Jerry Shur was in charge of the Witness Protection
Program and maintained certain supervision of the members of
the program throughout the United States.
Mr. Horn. Was Barboza's going there to protect him from
other people in the Mafia, was that basically----
Judge Harrington. We hoped that it would have. But it is
obvious that later when Baron left prison he no longer was
desirous of being a member of the program and within 2 months
he was assassinated by a Mafia hoodlum from Boston in
retaliation for his testimony on behalf of the United States.
Mr. Horn. In the process, you all testified on behalf of
Barboza's defense at the Clay Wilson murder trial, is that
correct?
Judge Harrington. That is correct, sir.
Mr. Horn. What was the situation there with Clay Wilson,
had he been involved or attempted to be using Barboza, or what?
Judge Harrington. Would you please repeat the question.
Mr. Horn. Did the terms and conditions of the program
really require the Federal Government to assist and support
Barboza in his defense on any future crimes that he might
commit?
Judge Harrington. In October 1970, the Congress formulated
or established the Witness Protection Program. A few months
prior thereto was when it came to the Government's attention
that he was involved in a killing. It was a time I think that
the Government was desirous of doing all it could to assist
Barboza in order to protect the viability of the Witness
Protection Program and, as I indicated previously, to send a
signal to other potential accomplice witnesses that the
Government would abide by its commitments.
Mr. Horn. Now you testified at the Clay Wilson murder
trial, is that correct?
Judge Harrington. I did.
Mr. Horn. And what led you to that?
Judge Harrington. It was a decision made by the Organized
Crime and Racketeering Section that we had to support the first
witness in the Witness Protection Program and one who had made
a singular contribution to the Government's fight against
organized crime. It was a judgment made at the beginning of
this effort against organized crime. Whether 35 years later the
same decision would be made, I am not sure. But it was a
unanimous decision and a belief by all those who participated
that it was in the best interest of the United States.
Mr. Horn. You wrote a letter to the director of the parole
board for the Montana State Prison urging the board to consider
parole for Barboza. That is exhibit No. 26. Is it true that you
wrote a letter?
[Exhibit 26 follows:]
[GRAPHIC] [TIFF OMITTED] T8662.097
[GRAPHIC] [TIFF OMITTED] T8662.098
Judge Harrington. I have no memory that I wrote it, but I
most likely did. And not only did I write a letter in his
behalf, but I was assigned, even though I was in private
practice, assigned by Attorney General Elliot Richardson to
appear at the parole hearing sometime in 1973.
Mr. Horn. In fact, you later testified on Barboza's behalf
before the parole board, is that right? Exhibit No. 27.
[Exhibit 27 follows:]
[GRAPHIC] [TIFF OMITTED] T8662.099
Judge Harrington. I did. The Attorney General, at that time
Mr. Richardson, asked me to come out of private practice
because I was aware of the Patriarca case and asked me to go to
Butte, MT to testify on his behalf.
Mr. Barr [presiding]. Does the gentleman have a final
question and then we will----
Mr. Horn. One final question. When was he moved to Santa
Rosa, CA?
Judge Harrington. I remember that he finished his testimony
in the Deegan murder case sometime in the summer of 1968. I
think for some months he was sent to Fort Knox, KY, I would say
approximately 4 to 6 months, that is my best memory, and that
sometime in 1969 he was relocated by the Department of Justice
pursuant to the Witness Protection Program to Santa Rosa, CA.
Mr. Horn. I am just curious as a Californian why this nice
little town of orchards and blossoms and all that. He was put
down in the middle of it I take it, and here is a guy that has
more than 20 murders. Whose great decision was that one?
Judge Harrington. I think it was a joint decision by
those--ultimately, I would think it was the head of the
Organized Crime and Racketeering Section of the Justice
Department.
Mr. Horn. Thank you, Judge. We appreciate having you here.
Mr. Barr. Thank you. The gentleman from Massachusetts is
recognized for 5 minutes.
Mr. Delahunt. Judge, I want to get back to that statement
about ``throughout my tenure as a Federal prosecutor I never
knew the identity of an FBI informant.''
Judge Harrington. That is true.
Mr. Delahunt. And you also in your written statement
indicated it was also the policy of the FBI to protect the
confidentiality of the identity of informants to ensure their
safety and thereby maintain the FBI's continued access to
criminal intelligence. Why during your entire tenure did you
not know the identity of informants?
Judge Harrington. Because I always considered myself a
professional. I know this, that if any attorney for the
Department of Justice or an assistant U.S. attorney ever asked
an FBI agent the identity of an informant, that not only would
they not tell you but they would lose confidence in you.
Because in those days people worked for the Government 3 or 4
years and then they would be outside. So I would never ask and
I was never told and I was not interested.
Mr. Delahunt. Right. And that was the context of the time.
Judge Harrington. Absolutely.
Mr. Delahunt. But we have learned a lot since, and I
understand that. It was as if you were asking questions which
should not be asked.
Judge Harrington. That is true.
Mr. Delahunt. As if the FBI implicitly did not trust you--I
do not mean you Ted Harrington, but you who were not part of
that particular agency.
Judge Harrington. I think it is fundamental in order to
have a relationship with an informant, especially in the deadly
world of organized crime, that confidentiality of the identity
has to be absolutely maintained and any breech thereof would
have I think dire consequences.
Mr. Delahunt. I would suggest that the time has come to
reassess that. That those who benefit from their status as
informants and their status as accomplice witnesses, in the
case of accomplice witnesses it is revealed, but over the
course of the past several decades, particularly in Boston,
there has been misconduct, there have been indictments of FBI
agents. Because of the court order in the decision and the
opinion rendered by Judge Wolf, information was revealed which
I suggest is eroding the confidence not only of the FBI, but of
our system of justice. It is unfortunate.
We have members of the U.S. Senate describing a culture of
concealment, a culture of arrogance within the agency. You
heard the Chairman today in his remarks directed to the
Department of Justice. And this is not just peculiar to the
Boston area. It really goes I believe to the heart of our
system. Because by that concealment, and there is a series of
reports filed here by Special Agent Rico that clearly would
have exculpated Joseph Salvati, that you never had knowledge of
and, according to press reports, neither did Assistant District
Attorney Jack Zalkind have knowledge of, and I am confident
that if Mr. Zalkind had knowledge of it, if you had knowledge
of it, the miscarriage of justice that occurred in that case
never would have occurred. He lost 30 years because of a
culture, because of an attitude. And, yes, I respect the need
for confidentiality, I think it is really important. But it is
about time that culture change. It ought to be considered as a
check and balance, if you will. There is not a U.S. attorney
that I am aware of that is not an individual of appropriate
ethics that would never risk the life or the personal safety of
an individual.
But there has to be oversight of the FBI and there is none
today. In fact, Judge Wolf, before the names of Bulger and
Flemmi were revealed, Judge Wolf, whom you served with and
continue to serve with, had to threaten the Deputy Attorney
General of the United States with contempt before they did it.
That is wrong. That is wrong. And Mr. Horn was asking the
question of how Joe Barboza, who was an animal, ended up in a
community and committed another crime, committed a murder. I do
not know if you are aware, Ted, but two of the investigators in
the homicide investigation of Mr. Wilson are present here,
yesterday they testified that they had no idea that Joe Barboza
was in their community. And here is someone who was
acknowledged by J. Edgar Hoover to be one of the most vicious
of criminals in the annals of criminal justice, and he
committed a murder there. I think we can presume that because
he pled guilty to it.
There has to be a policy, since it is this Congress that
makes policy, there truly in my opinion has to be a hard look
at the FBI as an agency and its appropriate role and function
in a democracy. I understand in the early 1960's Bobby Kennedy
was there and there was a zeal to get organized crime. It has
been part of our history of the ``red scares,'' if you will,
the ``blacklisting,'' etc. But what America is about, and I
think you agree with this, sure, we are about public safety,
but we are about individual rights and not seeing injustices
done. It has been painful to sit here over the past 4 or 5
months and see what has happened to people like Joe Salvati and
his wife and his children and his family. It is painful. And
here we are today, the chairman of this committee has to
threaten the Department of Justice to get information. I will
give you an opportunity to examine the exhibits in this case.
And let me ask Mr. Bybee, these are the redactions that we
are talking about. This is exhibit No. 15, March 19, 1965, Mr.
Chairman. Someone thought it was necessary to redact the
following--if the staff could provide Mr. Bybee, Mr.
Harrington, if you could provide him. What was so important,
Mr. Bybee, if you know, to redact the name of the Director of
the FBI? Is that some state secret?
[Exhibit 15 follows:]
[GRAPHIC] [TIFF OMITTED] T8662.068
[GRAPHIC] [TIFF OMITTED] T8662.069
Mr. Bybee. Congressman, the ``F'' next to that I understand
indicates that that was an administrative designated file
number and that is what has been redacted from there is the
file number.
Mr. Delahunt. God forbid if we should get those file
numbers.
Mr. Bybee. I understand, Congressman.
Mr. Delahunt. Now from the SAC Boston ``P''--is that
another administrative file number?
Mr. Bybee. I do not know what the ``P'' would indicate.
Mr. Delahunt. Was that a national security interest that
required the redaction of that name?
Mr. Bybee. Well, the FBI when it provides these documents
there are certain things that we have to designate, some things
are for national security, some things are because we have
confidential informants, some----
Mr. Delahunt. Is it confidential the name of the FBI
Director and the name of the Boston Special Agent in Charge in
March 1965?
Mr. Bybee. Congressman, I have not seen this document in
its original form. Again, from the code that is on there, I
believe that would not disguise the name of the Director of the
FBI J. Edgar Hoover, but it would have been a file number.
Mr. Delahunt. I only point this out because it is absurd,
isn't it. This is truly absurd. This gives credence to
everything that Chairman Burton has said, everything that
Senator Grassley has said, everything that a variety of Members
of Congress have said. This is about a culture of concealment.
And when you operate in this level of secrecy without any
transparency whatsoever you become very susceptible to the
miscarriages of justices that have occurred in this case. And
here we have the prosecuting attorney back in the 1960's, sure,
I know he is reflecting the attitude you did not dare ask the
FBI the name of an informant because they would have believed
that you were going to do something nefarious with it. Times
are changing and the FBI has to be held accountable and that
culture has to change.
This is totally unacceptable. We have a series of documents
here that are going on 40 years old that have no relevancy
whatsoever to any investigation that I am aware of that are
redacted in a way that just--imagine getting this document
being a Member of Congress trying to make some decisions as to
public policy. Again, the Director of the FBI is redacted--this
is exhibit No. 16, Mr. Chairman--and the SAC in Boston is again
redacted. I mean, this could not have happened in the Soviet
Union. I bet they do better in Iran. Look at that. Who made the
decisions, Mr. Bybee, about the redaction?
[Exhibit 16 follows:]
[GRAPHIC] [TIFF OMITTED] T8662.070
[GRAPHIC] [TIFF OMITTED] T8662.071
[GRAPHIC] [TIFF OMITTED] T8662.072
Mr. Bybee. Congressman, now that I have a copy of the
document, again the ``F'' next to the SAC Boston is a file
number. It is a routine redaction by the FBI.
Mr. Delahunt. OK. Let's go up to the Director of the FBI,
no number there, no letter there.
Mr. Bybee. I do not know whether the ``F'' up there
indicates that would be also part of a file number or not, I do
not know. I do not think that we would see any reason for us to
hide the name of the Director of the FBI.
Mr. Delahunt. Right.
Mr. Bybee. The ``M'' down there indicates that it was
irrelevant to the request from the committee.
Mr. Delahunt. Irrelevant. You made the decision that it was
irrelevant to the request of the committee?
Mr. Bybee. Well----
Mr. Delahunt. Can I ask this, who makes these decisions as
to redactions?
Mr. Bybee. Congressman, there is a----
Mr. Delahunt. Is there a special redaction room?
[Laughter.]
Mr. Bybee. No. There is a Civil Discovery Review Panel over
at the FBI that responds to all of these requests.
Mr. Delahunt. A what kind of panel?
Mr. Bybee. There is a review panel, a Civil Discovery----
Mr. Delahunt. What are the names of the----
Mr. Bybee. I do not have their names.
Mr. Delahunt. Can you provide the committee with the names
of those people?
Mr. Bybee. I am not sure. I will see whether we can provide
you with those names.
Mr. Delahunt. Because that might violate some sense of
national security too?
Mr. Bybee. Well, Congressman, we are happy to respond on
the documents and try to get you the information that you need.
But we do not generally provide the names of attorneys or other
employees of the Department or the FBI who are involved at a
much lower level.
Mr. Delahunt. Un-huh. Well I----
Mr. Barr. Would the gentleman yield?
Mr. Delahunt. I yield to the Chair.
Mr. Barr. Certainly, if the chairman asked you for those
names, you would have no problem furnishing them to the
chairman.
Mr. Bybee. Again, Congressman, if we are talking about
providing you with the names of line attorneys, that is not
something that we ordinarily provide simply because we want our
people to be able to provide us with candid advice and not be
subject to inquiry by Congress. We are happy to provide the
decisionmakers----
Mr. Barr. This is candid advice, what you just said, if
routine redactions require candid advice such as might require
the invocation of executive privilege, where would it end, Mr.
Bybee?
Mr. Bybee. Well, Congressman, let me see if I can back up.
When the committee sends us a request for documents we have to
exercise some kind of judgment as to what is responsive to you
and what is not responsive to you. You do not want us dumping
all of the files of the Department of Justice that are found in
Boston. That would bury all of us. It would not serve you, it
would not serve us, it would not serve any purpose to do so.
Mr. Barr. I do not believe, staff correct me, I do not
believe that was the request, that every document----
Mr. Bybee. No. But what I am getting at, Congressman, is
that when we get a request from the committee we have to
exercise some kind of judgment as to what is responsive and if
there are matters that are not responsive----
Mr. Barr. Hold on just a second. I think all the gentleman
from Massachusetts is saying is if we then have a subsequent
possible argument over your, the Department's judgment, we
might like to know who it was that made that judgment so we can
get to the bottom of it. And you are saying even that
information would be protected and would not be provided to the
committee.
Mr. Bybee. Well, again, we do not ordinarily make the--we
can make the decisionmakers, the ultimate policy decisionmakers
at the Department or the FBI available to talk with the
committee. But we generally do not make our line attorneys,
whether that is an assistant U.S. attorney, or it is an
attorney in the Federal program----
Mr. Barr. I do not think the gentleman from Massachusetts
is arguing with the general policy. We are saying that in a
situation where there is a specific request from the committee,
the committee Chair and there is a potential disagreement, what
is there that is so secret or would do great injustice to the
policies of the Department or its ability to carry out its
legitimate functions by providing the names that Mr. Delahunt
is asking for?
Mr. Bybee. Well, Mr. Chairman, if you want to make that
request, I will certainly take it back to the Department. If
you want to challenge the information that has been omitted
here, then again we will be happy to discuss that with you----
Mr. Barr. Well, thank you very much. That is very big of
you.
Mr. Delahunt. Reclaiming my time for a minute. It is
interesting that we can challenge what we do not know. Because
we do not know obviously what information is redacted, do we?
And that puts the member of a committee that has oversight
jurisdiction at a somewhat disadvantage. Would you agree with
that, Mr. Bybee.
Mr. Bybee. Congressman Delahunt, that would be true of any
document that we did not provide to the committee.
Mr. Delahunt. Right.
Mr. Bybee. Some judgment would have to be exercised as to
any document in our possession.
Mr. Delahunt. But then you make the statement that if the
committee or a member wishes to challenge the information that
is redacted, then proceed. That is similar in my mind to what
two families are experiencing in Massachusetts today. The
family of one McIntyre, I think his name is James or William,
where it is claimed, it is alleged that he was murdered as a
result of the misconduct of the FBI providing information to
Mr. Bulger and Mr. Flemmi. The family, the estate then proceeds
to file a civil suit against the Government. The Government's
response is you should have known about it, it was in the
newspaper. Without any access to the documents, without any
access to any of the information. My colleague from
Massachusetts, Mr. Frank described that action as
representative not of a Department of Justice but a Department
of Litigation.
Recently, it was brought to my attention that another
family is experiencing the same response. They filed a claim
but the claim was too late because they should have known
somehow without access to information that the deceased in
their family, who was also allegedly murdered because of
information provided by FBI agents, appeared in the newspaper.
What is happening? Are you familiar with those cases?
Mr. Bybee. I am not, Congressman.
Mr. Delahunt. Well, I know myself and Mr. Meehan and Mr.
Frank sent a letter and we got no response.
I will yield.
Mr. Barr. I thank the gentleman from Massachusetts.
Judge Harrington, going back to the prosecution of
Patriarca, there has been discussion of the Marfeo case which
was a Federal case, as I understand it, because it involved a
conspiracy to travel across State lines to commit murder.
Judge Harrington. That is correct.
Mr. Barr. In the Deegan prosecution, Barboza and Flemmi
went to Rhode Island to ask Patriarca's permission to kill
Deegan and then they went back across State lines to kill
Deegan in Massachusetts. Why was a Federal case against
Patriarca not brought for the Deegan murder?
Judge Harrington. Because the object of the conspiracy, the
killing of Marfeo, was not completed at that time. He was
killed sometime later as a result of another conspiracy. The
Patriarca case and so-called Marfeo conspiracy was brought
federally because the object was not attained, therefore we
tried that as a travel act case in Massachusetts. Whereas in
Deegan and in DeSeglio the murder was accomplished, therefore
at that time it had to be a State prosecution.
Mr. Barr. So you are saying that according to the case law
at that time, if the object of a conspiracy which was a murder
was actually carried out, the case could not be brought
federally, but if the object of the conspiracy was somehow
frustrated or thwarted or was not carried out that it could be.
Are you saying that?
Judge Harrington. No. What I am saying, sir, is that the
DeSeglio and Deegan cases involved murders, therefore they had
to be tried in State court.
Mr. Barr. But they also involved interstate travel in
support of a conspiracy to commit murder.
Judge Harrington. I know, but you would not prosecute
someone for conspiracy to commit murder where you could get 5
years at that time when you could prosecute them for murder in
the State court. That is what was done. With respect to the
Marfeo case, that conspiracy was a conspiracy to travel
interstate under Title 18 United States Code 1952 to commit the
murder which was not accomplished at that time. Therefore,
since there was no murder case that we had information on with
regard to Willie Marfeo, we proceeded under the travel act and
the conspiracy to violate it.
Mr. Barr. Was there any consideration given to prosecuting
Patriarca federally for the Deegan murder, the conspiracy
relating thereto?
Judge Harrington. To prosecute Patriarca federally? No,
there was not because the Deegan murder case was developed and
prosecuted by State authority, not by the Federal authority. It
was a murder case. The State had jurisdiction. The Federal
Government did not.
Mr. Barr. Well, the Federal Government could have on the
conspiracy if nothing else, interstate travel in support of----
Judge Harrington. But you would not have split the case if
it even had been considered. It was a murder case. Deegan was
dead. Garrett Byrne was going to prosecute it.
Mr. Barr. Who killed him?
Judge Harrington. Who killed who?
Mr. Barr. Deegan.
Judge Harrington. The jury found the seven defendants plus,
my understanding, that there were other people who were
involved in it who died prior to the prosecution.
Mr. Barr. Mr. Salvati did not kill him, right?
Judge Harrington. I cannot make a judgment with regard to
that. I did not try the case. Why ask me that question? I had
nothing to do with it. I have read the opinion and I know, as I
said in my statement----
Mr. Barr. As we sit here today, Mr. Salvati--would you
stand please, Mr. Salvati--who spent 30 years in jail for a
crime he did not commit, you are still not willing to say as
you sit here today that this man is innocent, you still think
he might have been guilty of that murder?
Judge Harrington. Here is what I say. I am not accusing
this man. But I do not think I can make that opinion. But I say
this. If he is innocent, I sympathize with him. And if through
any inadvertence that my conduct did to cause problems with him
and his wife and his family, I am immensely sorry. But I will
tell you at that time I considered myself conducting myself
with competence and with integrity and I thought I was making a
great contribution to the Government's fight against organized
crime.
Mr. Barr. Do you realize now that swept up, that zeal to
prosecute mafioso, swept up an innocent man and caused him to
spend 30 years in jail?
Judge Harrington. If that is so, I am extremely sorry. But
I was not there. All I have done in the last 6 or 8 weeks,
maybe 6 weeks, read the opinions on that case. And I would say
that because of people like Dan Rea and other people who
believe in his innocence, there is no doubt that I have some
doubt at this time, at least with respect to Mr. Salvati. But I
did nothing knowingly, willfully, or even through inadvertence
to cause him the injustice that at least he believes and other
people believe was rendered against him.
Mr. Barr. Thank you, Mr. Salvati. On December 20th of last
year you told our staff that you did not believe that any of
the Deegan defendants were innocent. Why did you reach that
conclusion, and that includes Mr. Salvati?
Judge Harrington. Because I read the Supreme Judicial
Court's opinion. I knew that Baron had been corroborated by
three other witnesses in part.
Mr. Barr. So you believed Barboza?
Judge Harrington. Yes, I did. And in addition, I knew the
background of the hit. I understood, without going into all the
details of why Deegan was killed and why his two associates,
Hannan and Delaney, were hog-tied and killed, there was one
clear thing--it was a sanctioned hit.
Mr. Barr. We can all agree that these were bad guys.
Judge Harrington. I am not saying they were bad guys. I am
saying it was a sanctioned hit. And a sanctioned hit means two
things--it meant it was approved by Raymond Patriarca and Henry
Tameleo in Providence and it was concurred in by Gennaro
Angiulo and Peter Limone in Boston.
Mr. Barr. And we also know that Mr. Barboza had told the
Government that he would never testify in a way that would
result in Mr. Flemmi, who was truly culpable, being found
guilty.
Judge Harrington. I understand that.
Mr. Barr. Well then how can you continue to this day to
profess such great confidence in Mr. Barboza and yet there is
still doubt in your mind that Mr. Salvati is innocent? I am
trying to get at what is there about Mr. Barboza that he has
this hold on you all, that even in his death you still----
Judge Harrington. I am just saying that he was a strong
witness, he carried a lot of baggage but he was corroborated,
and the fact that----
Mr. Barr. But you know he lied.
Judge Harrington. I do not know that. I always believed, I
always believed that Baron was telling the truth. Whether he
lied, now in retrospect I am not sure. But I believed firmly in
his testimony.
Mr. Barr. But he told the Government on March 8, 1967 that
he was going to lie. He said I will give you information on
murders but I am not going to say anything that would put
Flemmi in jail. And yet then they testify later and put this
man in jail. I mean, if that is not a lie, Judge, what is?
Judge Harrington. Well, the fact of the matter is,
according to Commonwealth v. Limone that the Superior Court
rendered in the year 2001, the judge in that case who reviewed
the entire trial transcript in the Deegan murder case, which I
have never done, testified that Baron testified--no, the judge
cited in her opinion that Baron testified that Flemmi was
involved in the scheme to kill Deegan. The fact that he was not
indicted was a decision made by the prosecutors.
Mr. Barr. By the Government.
Judge Harrington. Not by the Government. By the State
prosecutors.
Mr. Barr. That is the Government.
Judge Harrington. Well it is not the Federal Government.
Mr. Barr. I did not say Federal Government. It is the
Government. The Government made a decision not to prosecute him
because they wanted to protect Barboza and they did not care
whether an innocent man went to jail in order to protect him in
order to go after these other folks.
Judge Harrington. All I can say, Congressman, that decision
was not made by the Federal----
Mr. Barr. But you do agree that is an accurate statement?
Judge Harrington. I agree that the Federal Government, the
U.S. Attorney's Office did not make the decision whether to
prosecute James Flemmi in the Deegan murder case.
Mr. Barr. The gentleman from Massachusetts.
Mr. Tierney. Thank you. Judge, in 1970 there came a point
in time where you became aware and I think others with the FBI
and the prosecutor's office that attorney Bailey was
representing Mr. Barboza and there were indications that he was
ready to recant his testimony and that, in fact, he had signed
an affidavit and there was speculation that he was going to
take a lie detector test. Do you recall that period in time?
Judge Harrington. I remember the time period. I remember
that what Baron advised me as to who Mr. Bailey was
representing.
Mr. Tierney. And that was?
Judge Harrington. He was representing Barboza and he was
representing other interests.
Mr. Tierney. Which were?
Judge Harrington. The organization.
Mr. Tierney. And you found this out on a visit that you
made to Mr. Barboza while he was imprisoned at around that
time?
Judge Harrington. Joseph, according to my memorandum of
that date, Joseph Barboza requested that Walter Barnes, the
head of the Strike Force at that time, and Dennis Condon go
down to see him at Walpole. I accompanied Mr. Barnes.
Mr. Tierney. Why?
Judge Harrington. Because we were requested to go down and
see him. He wanted to see us.
Mr. Tierney. Now you say that you have a memorandum of that
occasion?
Judge Harrington. I have and it was attached to my opening
statement.
Mr. Tierney. Did you make any personal notes of that visit?
Judge Harrington. Yes. As soon as I came back, Barnes and I
wrote a memorandum of our interview with Joseph Baron to James
Featherstone, Deputy Chief, Organized Crime and Racketeering
Section, and I indicate at the last paragraph that Garrett
Byrne was so advised.
Mr. Tierney. Now those documents were in your possession
all this time, or they have been given to you recently?
Judge Harrington. I think it was given to me by, I think,
by members of the staff of this committee. I really had no, I
do not think I had, no memory of this. Like I did not have a
memory of my pros memo when I spoke with the staff, I do not
know whether I had a memory of this.
Mr. Tierney. Would that be the only document that you
prepared as a result of that visit?
Judge Harrington. Yes, it was.
Mr. Tierney. Now flashing back to the California Clay
Wilson scenario when you went out there and visited Mr. Barboza
in jail prior to that prosecution, did you file a report or any
other written documentation of that visit?
Judge Harrington. I do not recall any but I am sure I
reported to my superiors at the Department of Justice that, in
essence, it was not a frame, Baron was----
Mr. Tierney. But you would have put that report in writing,
is that correct?
Judge Harrington. I do not know whether I put it in writing
or--we were, in those days we were in constant communication
with Washington. Our superior, the Deputy Chief, Mr.
Featherstone, we talked to him three or four times a day. I do
not know whether I put it in writing or not.
Mr. Tierney. Well wouldn't it be your general practice that
when you go on official business and you have an appointment
with somebody and do an interview that you would commit that to
writing in some fashion, either file it in your office files or
send it to Washington, or both?
Judge Harrington. I very well could have. But I just have
no memory of doing it. But I know that I reported to
Featherstone the result of my trip to see Baron in California.
Mr. Tierney. Was it your practice, Judge, at that time
generally to file that kind of report after meeting with
somebody to interview?
Judge Harrington. I suppose it would be.
Mr. Tierney. When you met with Mr. Barboza in Boston at the
time of the reported recantation, what transpired during that
meeting?
Judge Harrington. You mean at Walpole?
Mr. Tierney. That is correct.
Judge Harrington. It is set forth in detail.
Mr. Tierney. But generally for us, if you would.
Judge Harrington. Well, the main thing is that he said that
he was being paid by money funded by the mob to induce him to
change his testimony, that his testimony in the Deegan case was
truthful and that any recantation would have been perjurious.
Mr. Tierney. And what did anybody, either you or the others
from the Government side, say to him?
Judge Harrington. My only memory of that entire interview
is contained therein. I would like to find out what I did say.
But what transpired on that meeting is fully reported in this
memorandum.
Mr. Tierney. Which was prepared simultaneously with your
return from that visit?
Judge Harrington. As soon as I returned. In fact, it does
show there in the first paragraph that Baron requested in
writing to speak to Barnes and Special Agent Dennis Condon. My
memory of the interview with Baron on that date is contained in
that memorandum.
Mr. Tierney. Did anybody tell him not to go forward with
his lie detector test and not to go forward with his affidavit
or recantation?
Judge Harrington. I did not, nor anybody in my presence.
Because the only two who went down was, my memory, although he
asked for Condon, I accompanied Barnes down there.
Mr. Tierney. And the fact of the matter is that shortly
after that visit, however, Mr. Bailey was fired and there never
was a recantation and there never was a lie detector test, as
far as you know, right?
Judge Harrington. He had already signed his recantation.
Mr. Tierney. The affidavit.
Judge Harrington. The affidavit.
Mr. Tierney. But after that visit that you made, Mr. Bailey
was fired and there was no further action on that. Is that
correct?
Judge Harrington. There were hearings on motions for new
trials.
Mr. Tierney. But no lie detector test?
Judge Harrington. No lie detector test.
Mr. Burton. Would the gentleman yield real quickly.
Judge, your memory is remarkable on most issues, except you
cannot remember that 5 month period when you were trying to get
Patriarca, you were trying to nail him and you heard that
bugged conversation where he gave his OK to murder Deegan. You
have forgotten that. But your memory is very, very good on all
this other stuff.
Judge Harrington. Well, I will tell you this, as I
indicated previously, I have spent the last 6 weeks refreshing
my recollection with respect to a matter that occurred 35 years
ago because I wanted when I came down here, I was invited down
and I was happy to come, to provide you, Mr. Chairman, with as
much information as I had.
Mr. Burton. I appreciate that. But it just seems strange to
me that when you were after the head of the mob and you heard
him give the OK to murder somebody that you would forget that
in 5 months. But sometimes our memories do slip. And you being
a judge, I am sure that you have a lot on your mind.
One thing I want to followup on. Now Mr. Bailey, who you
say was representing the mob, I presume, or the organization in
addition to----
Judge Harrington. Well, Baron told me he was representing
Raymond Patriarca.
Mr. Burton. OK. And you believed this man who killed 27
people? I am sure he would not lie to you.
Judge Harrington. Well somebody was paying him the money.
Baron said he was receiving money as an inducement to recant.
Mr. Burton. OK. So Mr. Bailey is about to have him take a
lie detector test, and then you go see Mr. Barboza without
telling his counsel, without telling the prosecuting attorney
you are there until after you have talked to him, and he
immediately changes his mind and does not take the lie detector
test. Did you say anything to him at all about that lie
detector test?
Judge Harrington. I did not.
Mr. Burton. You did not. Was anybody else there besides the
two of you when you talked to him?
Judge Harrington. Barnes and I were there and we said
nothing with respect to the lie detector test.
Mr. Burton. Barnes and you?
Judge Harrington. Yes, Barnes and I.
Mr. Burton. Who is Barnes?
Judge Harrington. Barnes was the attorney in charge of the
Strike Force at that time.
Mr. Burton. And he went with you when you went to see
Barboza?
Judge Harrington. He was called--Baron asked him to come
down.
Mr. Burton. So that when you went to the prison he was with
you?
Judge Harrington. That is right. And we both prepared that
memorandum.
Mr. Burton. I see. And the two of you never mentioned
anything about the lie detector test?
Judge Harrington. Baron mentioned the lie detector test. He
said as soon as I do a lie detector test for Bailey, I will be
killed. And he said he would not do it because--well, it is
contained right in the paragraph.
Mr. Burton. And you did not encourage him in any way?
Judge Harrington. I did not.
Mr. Burton. OK.
Mr. Tierney. Thank you, sir. Judge, where do our
prosecutors in the Government draw the line of where an
informant's value is outweighed by the potential harm that
would be done by protecting that witness in a particular
situation?
Judge Harrington. It is a judgment call. But you have to
put yourself back in the context of 35 years ago.
Mr. Tierney. Can I interrupt. Just policy-wise going
forward, I am really asking for your judgment on today's
situation. And knowing what you know now, if we were crafting
policy or reviewing the situation, what process should exist
for reviewing those situations where those kind of decisions
must be made and how do we go about making sure that any
determination is done properly and has appropriate scrutiny and
review before a situation arises that we might regret later?
Judge Harrington. I think you would have to weigh two
factors. On the one hand, the quality of the intelligence. And
on the other hand, the type of criminal activity that the
informant must, by definition, be engaged in.
Mr. Tierney. And who would you have making that
determination?
Judge Harrington. I think that the FBI should make that
decision under rules propounded by the Congress of the United
States, as Mr. Delahunt so eloquently professed.
Mr. Tierney. Would you have anybody in the Justice
Department other than the FBI reviewing the determination or
overseeing that, or would you leave it with the agency?
Judge Harrington. I do not know, I am not an expert in that
area. But I think that in the investigation of crime and the
cultivation of intelligence that is an investigative function
and not a legal decision. But I could be wrong.
Mr. Tierney. My curiosity on that is how do we find out or
how do we make sure that relationship between the informant and
the FBI agents who are supposedly working with them does not
become so cozy that it creates a problem, and that if there is
no other person or entity reviewing what is going on we end up
with a situation that we may well have--or it looks like we do
have here--a couple of rogue agents out there getting too close
and causing us all sorts of difficulty?
Judge Harrington. Maybe you could have a unit in the
Department of Justice, people who might review that type of
decision.
Mr. Tierney. Hopefully, not the same one that reviews
documents. But let me ask another question. How would you
describe your relationship with Baron or Barboza?
Judge Harrington. I think I had a good relationship with
him.
Mr. Tierney. What was your responsibility professionally
with respect to the Department and his activities?
Judge Harrington. Well, I was involved with the prosecution
of the Federal case. I was kind of a liaison with the Marshal's
Office and the District Attorney to ensure his protection and
his transportation for purposes of trial. So I had a
relationship with him.
Mr. Tierney. Did you have regular contact with him?
Judge Harrington. Not regular. During that period of time
he was guarded by 16 marshals in a mansion on an isthmus or
tangent out in Gloucester and periodically Paul Markum, Walter
Burns and I, who were the prosecutors on the Patriarca case,
would go up and speak to him about the testimony in the Federal
case.
Mr. Tierney. Would you say that you were closer to him than
the other gentlemen that you mentioned, Barnes and Markum?
Judge Harrington. I think we were all close to him but I
think he liked me better. And I think the reason might be
because Joseph Barboza came from New Bedford, MA, I came from
Fall River, MA, both of them are in southeastern Massachusetts,
and we had I think a little regional rapport.
Mr. Tierney. Did you have anything to do with his
whereabouts, his travels, or his eventual situation where he
was imprisoned on the Wilson murder and then eventually ended
up on the street in a relatively short period of time? What was
your involvement with him or with that process where he got
sort of run through the system and out?
Judge Harrington. I think that I testified in the Wilson
murder case, as I have testified here, about his extent of his
cooperation. I think I most likely was in contact with the
Parole Board and I know that I testified before the Parole
Board.
Mr. Tierney. In California?
Judge Harrington. He was transferred from California to
Montana.
Mr. Tierney. Did you arrange for that transfer?
Judge Harrington. I do not want to say yes or no. I have no
memory of what happened. But at that time, you have got to
realize----
Mr. Tierney. No, no, I understand that there were other
things----
Judge Harrington. But I think, to tell you the truth, my
best memory is that the authorities in California wanted to get
him out of that area because of the risk that he would be
assassinated in prison because of his cooperation with the
Government against the organization.
Mr. Tierney. Is there any potential that he called you and
he asked you to help him go somewhere else?
Judge Harrington. I have no memory of that.
Mr. Tierney. But it would have been the kind of
relationship that you had with him?
Judge Harrington. I will tell you this, I do not recall
contacting the authorities in California to have him
transferred to Montana. I could have done it. It would have
been standard practice if we thought he was going to be killed
in California. I just have no memory of it.
Mr. Tierney. How did it end up that you ended up in Montana
testifying in front of the Parole Board?
Judge Harrington. Because Elliot Richardson called me while
I was in private practice and asked me to go out there because
I was involved with Baron in the Patriarca case and had some
connection with him and knew his contribution to the Government
in its fight against organized crime.
Mr. Tierney. And Mr. Richardson's position at that time?
Judge Harrington. He was Attorney General of the United
States.
Mr. Tierney. And he personally called you and asked you to
go up there?
Judge Harrington. I do not want to say that he personally
did. But I was advised that the Attorney General, and I must
have got some authority because I was not a member of the
Department of Justice, he reinstated me to be a Special
Attorney for the purposes of that trip.
Mr. Tierney. And then you went up there with the intention
that your testimony would be helpful to Mr. Barboza's cause?
Judge Harrington. Absolutely.
Mr. Tierney. And last, why would you suspect, as was
reported I guess in the Hartford Current by a gentleman named
Edmund Mahoney who wrote an article back on February 10th of
this year, ``When Barboza wrote his book, 'Barboza,' it was
billed as the nakedly brutal story of his life in crime and he
dedicated it to Edward Harrington with respect.''
Judge Harrington. What is your question?
Mr. Tierney. Did you have that great a relationship with
the man?
Judge Harrington. He must have liked me.
Mr. Tierney. Thank you.
Mr. Burton. You know, Barboza did like you. I am not sure I
would want to brag about that too much. He murdered at least 27
people even if he did come from your neck of the woods. And he
wrote you a nice letter saying, you know, I did not even have
to say one word to the parole board. Here is a guy that
murdered Wilson while in the Witness Protection Program. You go
out and testify on his behalf along with two FBI agents. The
guy does not get the death penalty, they plea bargain and he
gets 5 years in prison, goes to Montana, and his defense
attorney says it was like a country club because he was calling
him all the time, he was smoking pot, and he was just living
the life of Riley. And then he writes to you and says the
parole board said this is the ``fastest hearing in the history
of Montana'' that I made parole, ``I did not even say one
word.'' Do you know, you did a great job. He really was your
friend. You did a great job for him.
Mr. Horn.
Mr. Horn. Thank you, Mr. Chairman. Judge Harrington, let me
go into just a couple of other exams. Prior to Condon's
testimony, moving to that, was he restricted in any manner by
the FBI or the Department of Justice authorities regarding what
information related to the Deegan murder you could reveal? The
information is in our records from the Patriarca tapes or
either from FBI informants. Did you have a chance to look at
that material?
Judge Harrington. Is your question, did I have a chance to
look at the logs from the Patriarca bug? If that was your
question, yes, I did in preparation for my prosecution memo.
Mr. Horn. OK. And what did you think of Condon's testimony?
Judge Harrington. Think of what?
Mr. Horn. What did you think about the testimony of Condon?
Judge Harrington. At the Deegan case, or in the Shore case?
Mr. Horn. This would be the Deegan trial. Condon testified
there and prior to his testimony in the Deegan murder case that
he received permission from the Department of Justice.
Judge Harrington. I do not know whether he received
permission. I assume that he did because that was the practice
at that time. I do not know what Condon testified to in the
Deegan murder case, so I cannot evaluate the quality of his
testimony.
Mr. Horn. Were you involved in that decision as to whether
Condon would testify or not?
Judge Harrington. I was not.
Mr. Horn. OK. Let me move then to, prior to that, was he
restricted in any manner by the FBI or the Department of
Justice authorities regarding what information related to the
Deegan murder. Could you reveal any of that for us?
Judge Harrington. All I can say is that at that time, and I
think even today, when a Federal witness is asked to testify in
a State trial he testifies under explicit written authorization
of the Attorney General and must contain his testimony within
the ambit of that authority.
Mr. Horn. Now Mr. Condon then, did he use the Patriarca
tapes or were they using FBI informants?
Judge Harrington. Again, I do not know what Mr. Condon
testified to in the Deegan murder case. So I cannot answer your
question, sir.
Mr. Horn. Prior to Condon testifying, did you review with
him the Deegan murder information that was obtained from the
FBI's secret monitoring devices or from the FBI informants?
Judge Harrington. I had absolutely--absolutely--no
involvement in the Deegan murder case.
Mr. Horn. Did you perceive any ethical obligation to ensure
that all the information developed by you and other Federal
sources indicated that some of the Deegan defendants, Mr.
Salvati, or Greco, Tameleo, and Limone, were innocent and were
they provided to the Suffolk County District Attorney's office
at the time of the Deegan trial? If not, why not?
Judge Harrington. I know, or I believe from reviewing the
record that no orders issued from the State court. And I had no
involvement in it. So I gave no advice to anyone with regard to
that matter.
Mr. Horn. On another part of this interesting parade. Jimmy
Flemmi before the grand jury, did he ever testify before a
grand jury regarding the Deegan murder?
Judge Harrington. Not that I know of.
Mr. Horn. Was he called before the grand jury to give him
cover?
Judge Harrington. At the early stages, after Baron was
turned in March or early April 1967, James Flemmi and a fellow
by the name of Fabiano were brought in to speak with the FBI in
an attempt to see if the FBI could turn them. My understanding
is, I did not talk with Flemmi, but my understanding from
talking with the Bureau agents is that he was unwilling to turn
State's evidence and that he was put before the grand jury in a
pro forma manner so as to provide him with an excuse when he
returned to prison.
Mr. Burton. Would the gentleman yield real briefly. Was
this a Federal or State grand jury?
Judge Harrington. Federal.
Mr. Burton. Federal.
Mr. Horn. Did you put Jimmy Flemmi before the grand jury?
Judge Harrington. I did.
Mr. Horn. And we have been told that he was brought before
a grand jury in order to give him cover, and that is what we
are curious about.
Judge Harrington. By the term ``cover,'' Congressman, it
meant that he would be able to advise his prison associates
that he was brought in to the U.S. Attorney's Office because of
his testimony before a grand jury, where the real purpose was
to talk with FBI agents to see if they could turn him.
Mr. Horn. Let me mention Jack Zalkind, is that----
Judge Harrington. Jack Zalkind.
Mr. Horn. Zalkind. He refused to cooperate with the
committee and was the prosecutor in the Deegan case. His
assistant has signed an affidavit that he had exculpatory
evidence at the time of the trial and that evidence was not
turned over to the defense. Do you know whether Zalkind had
information that Jimmy Flemmi was involved in the Deegan
murder?
Judge Harrington. I have no information. And as I indicated
previously, Jack Zalkind said in the Boston Herald Tuesday of
this week that he never discussed the Deegan murder case with
me.
Mr. Horn. Was any information from the Patriarca logs
discussed with him at all?
Judge Harrington. I have no memory that anything on the
Patriarca logs were discussed with Zalkind because I never
discussed that case with him. However, as I indicated
previously, the Patriarca logs were made available to two of
the defense counsel who subsequently defended the same
defendants in the Deegan murder case. So they were available.
Mr. Horn. Did Barboza tell Zalkind or any State law
enforcement officials that he would not provide information
against Jimmy Flemmi?
Judge Harrington. I do not know what he said to Zalkind or
State law enforcement officials.
Mr. Horn. Did you tell Zalkind or any State law enforcement
officials that Barboza had said he would not provide
information against Jimmy Flemmi?
Judge Harrington. I did not. I never talked with Zalkind
about the prosecution of this case.
Mr. Horn. That is fine. The first sentence of one document
reads: ``The investigation is being initiated in connection
with the TECIP''--perhaps you know that, Mr. Bybee, what is the
TECIP?
Mr. Bybee. I do not know what that is, Congressman.
Mr. Horn. Judge, was that a group within the Department of
Justice?
Judge Harrington. What is it?
Mr. Horn. T-E-C-I-P. For short, probably TECIP.
Judge Harrington. I do not recall the term at this time.
Mr. Horn. And the question was, ``Investigation is being
initiated in connection with TECIP,'' this group, ``to develop
the subject as a top echelon criminal informant. Therefore,
subject is being designated a target under this program.'' The
date of this document is April 14, 1969. And I do not see an
exhibit on this, counsel.
Mr. Burton. Excuse me, Mr. Horn. We have about 4 or 5
minutes left on this vote. If you would like, we can come back
and you can wrap it up then. Would you like to do that?
Mr. Horn. OK. Fine.
Mr. Burton. OK. We will try to wrap this up very shortly as
soon as this vote is over. We will be back very shortly. Thank
you.
Judge Harrington. Thank you.
[Recess.]
Mr. Burton. The committee will reconvene.
I think we have covered everything we need to cover. So
rather than have you sit around, even though we have more
questions for the Justice Department, because of the lateness
of the day, we will adjourn this hearing and we will conduct
further hearings down the road.
Judge Harrington. Mr. Chairman, I want to thank you and the
courtesy you have shown me.
Mr. Burton. Thank you, Judge.
So we stand adjourned.
[Whereupon, at 2:10 p.m., the committee was adjourned, to
reconvene at the call of the Chair.]
[The exhibits referred to follow:]
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JUSTICE DEPARTMENT MISCONDUCT IN BOSTON: ARE LEGISLATIVE SOLUTIONS
REQUIRED?
----------
WEDNESDAY, FEBRUARY 27, 2002
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10:42 a.m., in
room 2154, Rayburn House Office Building, Hon. Dan Burton
(chairman of the committee) presiding.
Present: Representatives Burton, Barr, Morella, Shays,
LaTourette, Waxman, Norton, Cummings, Kucinich, Tierney,
Turner, Watson, and Lynch.
Also present: Representatives Frank, Delahunt, and Meehan.
Staff present: Kevin Binger, staff director; James C.
Wilson, chief counsel; David A. Kass, deputy chief counsel;
Mark Corallo, director of communications; Elizabeth Frigola,
deputy communications director; Chad Bungard and James J.
Schumann, counsels; Robert A. Briggs, chief clerk; Joshua E.
Gillespie, deputy chief clerk; Robin Butler, office manager;
Nicholis Mutton, assistant to chief counsel; Corrine
Zaccagnini, systems administrator; Phil Barnett, minority chief
counsel; Michael Yeager, minority deputy chief counsel; Ellen
Rayner, minority chief clerk; and Jean Gosa, minority assistant
clerk.
Mr. Burton. Good morning.
A quorum being present, the Committee on Government Reform
will come to order.
I ask unanimous consent that all Members' and witnesses'
written and opening statements be included in the record, and
without objection, so ordered.
I ask unanimous consent that all articles, exhibits and
extraneous or tabular material referred to be included in the
record, and without objection, so ordered.
I also ask consent that Representatives Frank, Delahunt and
Meehan, who are not members of the committee, be permitted to
participate in today's hearing. Without objection, so ordered.
I ask unanimous consent that the statement by Professor
Bennett L. Gershman be included in the record and without
objection, so ordered. He is one of the Nation's leading
experts on prosecutorial misconduct.
The committee invited Professor Gershman to testify today.
Unfortunately, he is teaching abroad and cannot be here. In his
statement, he refers to a recent study by the Chicago Tribune
that documented some 300 homicide convictions that were
reversed because prosecutors suppressed exculpatory evidence.
The landmark study describes the connection between
prosecutorial misconduct and suppressing exculpatory evidence
in the conviction and capital sentencing of scores of innocent
defendants. I want to thank him for his valuable contribution.
I hope to get a chance to meet with him at some future date.
[The prepared statement of Mr. Gershman follows:]
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Mr. Burton. We are meeting again today to talk about FBI
misconduct in Boston and possibly elsewhere. This is an
investigation we are very serious about. I think it is clear to
everyone at this point. We have held 4 days of hearings. We
have heard testimony about some things I think everyone finds
pretty shocking.
A lot of people in this country, myself included, grew up
revering the FBI. I still believe there are a great many, in
fact, the vast majority of FBI agents, are honest people, who
are doing a good job as well as the Justice Department. I think
they are dedicated to protecting the public and their
reputation should not be stained by the actions of a few people
but it has been very sobering to hear about some of these
terrible abuses going on at an agency I have always had on a
pedestal.
It was a sad day 2 weeks ago when we had a former FBI agent
take the fifth amendment. When I was growing up, criminals took
the fifth amendment. I never thought we would see an FBI agent
before a congressional committee taking the fifth.
Last year, we heard about Joe Salvati for the first time.
The FBI had a prize mob witness, Joe ``the Animal'' Barboza.
Joe ``the Animal'' Barboza testified against Joe Salvati and
others. He implicated Salvati in a murder that happened in
1965. Mr. Salvati was sent to prison for life and could have
gotten the death penalty. Others went to prison for crimes they
might not have been involved in.
Joe Barboza lied and the FBI knew he was lying. They had
document after document in their possession showing who the
real killers were and they never turned them over to the
defense. Joe Salvati had never been involved in organized
crime. He had four little children when he went to prison. When
he was finally cleared, after 30 years, his kids were all
grown.
How could the FBI stand by and let this happen? Two weeks
ago, we held a hearing about Joe ``the Animal'' Barboza's
murder trial. The Justice Department put Joe Barboza in the
Witness Protection Program. In fact, it was created for him.
They put him in California and he committed another murder. He
went on trial and the FBI and the Justice Department went out
to California and helped him get a lighter sentence. The
sentence was so light he was out in less than 3 years for
murder, premeditated.
A Justice Department lawyer and an FBI agent testified on
Barboza's behalf during the trial. Their testimony was
devastating to the prosecutors. I can't forget one of the
statements we heard at the hearing, ``The FBI at the time was
considered pretty sacrosanct. They had damaged our case to the
point that we didn't think the jury would give us a first
degree murder verdict.'' So as a result, they plea bargained.
This man who had already committed more than 20 murders, a
man who the FBI said was the most dangerous criminal known, a
man who murdered again after they put him in the Witness
Protection Program and they helped him get a light sentence. He
would have gotten the death penalty according to the
prosecutors who thought they had an ironclad case. Because the
FBI and the prosecutor in the case testified in his behalf, he
got 5 years most of which was suspended and he was out in about
2\1/2\ to 3 years.
Joe ``the Animal'' Barboza, who had probably killed two
dozen people, was up for parole in 3 years and at the very
first parole hearing, the Justice Department lawyer flew out
and testified on his behalf. That Justice Department lawyer is
now a Federal judge in Massachusetts. His name is Edward
Harrington. He testified here 2 weeks ago. We asked him why he
did all this. His response was they had just created the
Witness Protection Program and they wanted to send a message to
people that if you went into the program, the Justice
Department would stand by you. I want you to think about that.
They put him in the Witness Protection Program because he
turned in some of the mafiosi but then he murdered someone else
and after he murdered someone else, they said, we are going to
stand by you and went out and testified to get him a lighter
sentence and keep him out of the electric chair. What kind of
message is that? If you go into the Witness Protection Program
and you murder somebody, we are going to stand by you? I think
that is outrageous.
We need to have a Witness Protection Program. The people
who go into that program are obviously criminals in many cases
but I think we have to lay down the law that if the Government
pays you money and protects you and you murder somebody, you
are finished, period.
What we have looked at so far is just the tip of the
iceberg. What the FBI did in Boston was tragic. They had a
group of mob informants committing murders with impunity. They
tipped off killers so they could flee before they were
arrested. This is the FBI. They interfered with local
investigations of drug dealing and arms smuggling. Some FBI
agents were getting payoffs. When people went to the Justice
Department with evidence about murders, some of them ended up
dead. In other words, the FBI was tipping off the guys in the
mafia there was somebody that was coming with evidence against
them. They would tell the mafioso about it and they would go
out and kill them. So the FBI, in some cases, was complicitous
in these murders.
We are conducting this investigation because there are some
basic questions we want answered. How extensive were the
abuses? We need to find out the extent of what government
officials did and explain it to the American people. How high
up the food chain did this go? We know that memo after memo was
sent to J. Edgar Hoover. In fact, he asked for information
twice a week. Did he sign off on all these things that were
done? It is hard for me to believe he didn't know. I am
confident he did know. Breaking the back of the mob was his No.
1 priority and all indications are that he paid very close
attention to these memos and what was happening.
There are other cases where people were knowingly sent to
prison for crimes they did not commit. We have an obligation to
find out who those people were, who was involved and if they
were innocent, to get them out of jail. There may be people who
were put to death for crimes they did not commit. There may be
a lot of people in jail still for crimes they did not commit.
We need to find out who they are, make sure justice is done,
and bring to justice those rogue FBI agents and Justice
Department officials that were involved.
Finally, are there legislative responses to this that we
ought to consider? That is the point of today's hearing. What
kind of legislation or action is called for? Do we need tougher
penalties? Should the statute of limitations be extended for
prosecutorial misconduct? As we have seen in Boston, corruption
on the part of a government official can go undetected for
decades. Are there other types of legislation we ought to
consider?
We have a distinguished panel of witnesses today. First, we
have Victor Garo. Victor was the attorney for Joe Salvati. He
spent 25 years fighting to get Joe Salvati out of prison. He
didn't get paid a penny but Victor wasn't going to abandon
Marie Salvati and her four kids. His perseverance paid off and
I am looking forward to hearing what he has to say today.
We have a former Connecticut State's Attorney, Austin
McGuigan. Mr. McGuigan was the chief prosecutor on
Connecticut's Statewide Organized Crime Task Force. He is going
to testify about a whole new part of the scandal we haven't yet
focused on, the corruption of the World Jai Alai. The State of
Connecticut was investigating mob infiltration of the sport of
Jai Alai in Bridgeport. The State prosecutors were trying to
get some cooperation from the FBI in Boston and they could not
get any help. As it turned out, World Jai Alai was being
infiltrated by Whitey Bulger and Steve ``the Rifleman'' Flemmi,
the same thugs who were informants for the FBI. In fact, one of
those FBI agents, Paul Rico, retired and went to work for the
World Jai Alai. He is the same guy we had here a couple of
weeks ago who took the fifth amendment against self
incrimination.
There were a series of murders. The head of World Jai Alai
was murdered in Tulsa, OK. A member of the Winter Hill Gang
went to the FBI to offer them information. He was murdered.
Connecticut prosecutors went down to Florida to interview
another person tied to World Jai Alai and the day they arrived,
his dead body was found. Who was tipping off the mob and
causing all these murders? That is one of the things we want to
find out and want to thank you for being here today.
We also have two distinguished law professors, Frederick
Lawrence of Boston University and Stephen Duke of Yale. Mr.
Lawrence used to work as a prosecutor for Rudy Giuliani in New
York. He has extensive experience in the area of prosecutorial
misconduct. Mr. Duke is a distinguished professor at Yale Law
School and teaches a course entitled, ``Freeing the Innocent.''
We appreciate both of you being here with us today.
Mr. Waxman is not with us but we will turn to Mr. Tierney
and let him make his opening statement.
[The prepared statement of Hon. Dan Burton follows:]
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Mr. Tierney. Thank you.
Again, I applaud you for once again determining to pursue
justice in these matters. I am going to ask that my formal
remarks be placed on the record and submitted if that is
acceptable to the committee.
Mr. Burton. Without objection.
Mr. Tierney. I want to say briefly that we have had
extensive hearings, and the people in this room may know by now
what the chairman says about the testimony and conduct of the
FBI is true and is more than just a little bit disturbing to
all of us. There apparently remains two things left to discuss.
One is how do we make sure that justice or as close to justice
as can be done is achieved with respect to Mr. Salvati and
others badly treated by the FBI and Federal authorities. The
second thing is what do we do about looking at the law or what
has to be changed to make sure these behaviors are preempted in
the future? I think these two things were ultimately at the
heart of these hearings from the beginning.
I have had an opportunity to review the testimony submitted
by you gentlemen and I appreciate that. I have to tell you that
I have other committee meetings and out of no disrespect, I
will be in and out of this hearing. What you have provided in
writing and what I am sure I will be able to look at in the
transcript will be extremely helpful to us. I appreciate that
and all the comments you make with respect to both of those
issues, how we might try to afford some sort of justice to the
people involved and how we might try to make sure our laws more
properly reflect what this country is about and how we expect
our law enforcement agencies to act will be extremely useful to
us all.
[The prepared statement of Hon. John F. Tierney follows:]
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Mr. Burton. Mr. Shays.
Mr. Shays. As well, I want to thank you for holding these
hearings. I consider these hearings some of the most important
hearings Congress could have. I am very proud my chairman and
this committee is involved.
Twenty-eight years ago as a young, new State legislator, I
met this State's attorney involved in an organized crime task
force who later became the chief State's attorney for
Connecticut and during my time of getting to know and admire
him, one of our witnesses, Austin McGuigan, he told me about
FBI agents who were working for Jai Alai operations in
Connecticut and how they were retiring and then working for
these organizations that were very much involved in organized
crime, and that the FBI was working for organized crime.
I listened to it, I heard what he was saying but I thought
there had to be explanations that went beyond the implication
that the FBI was connected with organized crime. Then he told
me that he was losing some of his witnesses, that they were
being murdered, that these witnesses had sought protection from
the FBI and other law enforcement officials and that they were
literally being eliminated and in some cases, being put in
positions that were a keen message to him and the work he was
doing.
He basically described an FBI in New England that had
become very corrupt and dangerous. I thought there was some
exaggeration to his expressions because as you will find he has
a way of telling a story that will captivate you and then we
had hearings earlier this year. I put them both together and
Marie and Joseph Salvati because both of them are the story and
the fact that FBI agents would be involved in sending an
innocent man to prison with a young family, and then when he
was able to get out--people worked to keep him there, even
though he could have gotten out and he wasn't going to be found
innocent. They were just going to say he had been there long
enough and they fought to keep an innocent man in prison which
just blows your mind.
Having said that, this isn't a hearing about Marie and
Joseph Salvati. As amazing as this is, about what happened to
two precious Americans and how outrageous, this is an even
bigger story. It is a story of innocent people sent to jail,
who died in prison, a story of people trusting the criminal
justice system and having it basically turn against them.
I believe that ultimately this is a story that we are going
to get a handle on. One of the things that amazes me in a way
is I know the people in the FBI today want a clean force but
they are not cooperating with this committee. So in a way the
FBI and the crooks in the FBI are still getting away with it.
That is what is so astounding. I guess what it amounts to is
are they going to win or are the people going to win. I believe
this is a hearing that will move the ball forward and in the
end, we will get at the story and see the story fully told. I
think we will see major reforms come from it. Legislation is
necessary.
Mr. Burton. Let me say I appreciate your comments, Mr.
Shays. One of the things we are doing right now, and I know
members will be coming and going, is we are still running into
the Justice Department and the FBI not giving us documents
relevant to our investigation. This is a 30-year old case. So
right now we are having our legal staff prepare a contempt
citation on this issue. I don't really want to do that and I
have told the Justice Department this time and again but if
they continue to be recalcitrant and we cannot get cooperation
from them to get these documents, I hope everyone on this
committee will assist me in getting the support we need in the
Congress to move this forward.
I think once the White House and the Justice Department
realize that we are going to go all the way to the mat with
this thing, then they will give us the documents. It is not in
the national interest to keep this under wraps. I will urge
your support and I know you are one of the guys I don't think
is concerned about controversy, so I think I am going to have
your help.
Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman.
First, let me state that this past week myself and
Congressman LaTourette were in Boston conducting depositions.
It would be remiss of me not to stress to you the excellent
work and performance of your staff, Jim Wilson, and on the
Democratic side, Mike Yeager. They put a lot of time and effort
into that particular aspect of the committee's work and they
were most helpful. I want to make that a matter of record.
I also have had the opportunity to read the testimony of
the witnesses here today. It is like an echo that rings with
much truth. I think clearly the tragedy of the Salvati family
is as a result of a failure to disclose information to counsel
representing Mr. Salvati and others. I think what we will hear
today is the result of the failure to disclose information to
other law enforcement agencies, whether they be State or
whether they be Federal.
You just made reference to the fact that you are prepared
to go forward with a citation for contempt. It was interesting
to read the decision just last night of Judge Wolf where he had
to threaten contempt of the Deputy Attorney General before
information was disclosed to him. If there is the need for any
further evidence that there exists within the FBI particularly,
and I dare say the Department of Justice, a culture of
concealment, we have overwhelming evidence already. I think it
is a question now of how do we encourage a new attitude, a
willingness to provide information to State and local law
enforcement where terrible crimes have been committed so that
we can bring the guilty to justice, and in the case of the
innocent, to provide information so that an injustice is not
done.
I think these hearings are probably the most significant
hearings I have participated in during my time in Congress
because they go to the very heart of American democracy which
is the integrity of the justice system. Unless the American
people have confidence in the integrity of that system, we put
at risk not just the justice system, but our democracy.
With that, I yield back. Again, thank you for inviting me
to participate.
Mr. Burton. Thank you, Mr. Delahunt.
Mr. LaTourette, I understand you went up to Boston for our
recent depositions?
Mr. LaTourette. I did, Mr. Chairman. If you will permit me
to make some brief opening remarks?
I do want to commend Mr. Delahunt of the other side for his
conducting those depositions in Boston and also our staff, Mr.
Wilson, for the outstanding preparation in the deposition of
former FBI Special Agent Dennis Condon over 2 days up in
Boston.
I do want to thank you, Mr. Chairman, for the continuing
conduct of these hearings. I share Mr. Delahunt's observations.
It is a fine line, both he and I used to prosecute cases, I
used to defend cases. I don't know if he was ever on the dark
side but I was and it is always a fine line. A prosecutor is
different than a defense lawyer. A prosecutor is charged with
doing justice and that creates an obligation. I think today's
hearing is going to point to some of those abuses.
I would hope that the testimony that is developed doesn't
indict or paint with a broad brush all prosecutors because my
experience is that there are many, many fine men and women in
the prosecutorial field in this country who do their job and do
it within the bounds of not only the law but the ethical
constraints of the bar.
I did want to make one comment about something that
happened in Boston. We had the opportunity, the Justice
Department was kind enough to send to us during the course of
that deposition the prosecution memorandum prepared by Judge
Harrington that had been billed by testimony that the Justice
Department and the President's observation that national
security was at risk if these documents were released, I think
it was about 20-plus pages. We had the opportunity to review it
and then it was taken back from us by U.S. Marshals as is law
in Boston.
I can tell you from reviewing the document, I am hard
pressed to determined what national security was endangered by
our viewing that document or what national security would be
endangered by the release of that document to the public. I
think it was a well done memorandum by Judge Harrington. I
think the only jeopardy it put anybody in is that in pertinent
part it clearly indicated the FBI in Boston was aware of
information through electronic surveillance information that
indicated the people that participated in the murder of Ted
Deegan in 1965, that they knew in 1965 it was Mr. Barboza and
some of the others that have come to our attention in the
course of these hearings, not Mr. Salvati and others who were
eventually convicted, but other than that there was no national
security compromised by that memorandum.
I know that you, Mr. Chairman, have been a champion in
attempting to bring forward these documents. I want you to know
you have my assistance in that endeavor and I hope you continue
on that course.
Mr. Burton. Thank you, Mr. LaTourette.
Let me say that it is not just the Salvati case that
troubles me. It is what may be beyond that. When we got that
executive privilege document from the President saying it was
not in the national interest, what troubled me and still
bothers me is there may be other Salvatis out there who are
still in prison or who may have been worse, put to death. That
may be something the Government of the United States doesn't
want in the public forum but that is something that needs to
come out.
Ms. Watson.
Ms. Watson. No thank you.
Mr. Burton. Mr. Cummings. Nice seeing you.
Mr. Cummings. It is good to see you, Mr. Chairman. It is
good to be here this morning.
First, I want to thank you and I really do appreciate your
holding the series of hearings you have held. I think it draws
attention to some of the problems in our justice system. So
often people complain about the justice system and their
complaints fall on deaf ears because they hear the words come
forth ``hear they go again.'' The inquiry you have conducted, I
must tell you, I applaud you.
In the case of Mr. Salvati, released FBI documents show
that agents not only concealed evidence that he was framed in
order to protect informants, but they also knew in advance
about the murder plot and did nothing to stop it. I am outraged
that the FBI not only allowed Mr. Salvati to spend 30 years in
prison, but were partly responsible for him being their in the
first place. Such an injustice should never happen. A case like
the one before us leaves a very bad taste in anyone's mouth and
it is shocking to the conscience.
This committee has spent months investigating Justice
Department and FBI misconduct in Boston. Today, we explore the
need for legislative changes in the laws governing misconduct
on the part of Federal prosecutors and law enforcement agents.
I guess you could say that we need to police the police. It is
always difficult and regrettable to recognize the need for
oversight of our protective agencies. The FBI and other law
enforcement organizations are charged with the enormous
responsibility of protecting us. They should not be the ones to
harm us. It all comes down to trust. If we cannot trust the
very people who are supposed to protect us and prevent crimes
in our cities, then who can we trust? What parent has not
taught their child that in a crisis, they should seek the help
of a police officer? I definitely taught this lesson to my
children.
Unfortunately, fear of police corruption may cause many
parents to teach their children a different lesson. Sadly, I
feel that due to this corruption, thousands of men and women
are spending time in prison for crimes they may not have
committed. I suspect a number staggering for minorities,
especially among African Americans.
Mr. Chairman, I know the streets in my district and around
the Nation are tired of the injustices heaped upon them by this
type of law enforcement corruption. I want to be clear that I
am not condemning all law enforcement officers and the FBI.
Ninety-nine percent of law enforcement are honest, hardworking,
good police officers. They are honorable and hardworking law
enforcement officers doing their job the best they can trying
to keep our communities safe, stop violence and keep drugs off
the streets. But when there are reports of corruption,
especially of this magnitude, we lose faith in law enforcement
officers, including FBI agents.
After widely publicized disclosures of law enforcement
abuses in the Boston office of the FBI, former Attorney General
Janet Reno convened a task force to review the Department of
Justice's policy in the use of information from confidential
informants. On January 8, 2001, Attorney General Reno issued
revised guidelines designed to address many of the problems
that arose in the Boston case. Some of the revisions required
the Department of Justice must conduct a high level, periodic
review of long-term informants and that Federal prosecutors
must be told when an informant has committed a crime or is
under investigation.
These proposals appear to be reasonable requirements but it
is my understanding that the committee has not evaluated the
effectiveness of these guidelines as a means of preventing law
enforcement and prosecutorial abuses such as those that
occurred in Boston. Mr. Chairman, I would recommend that the
committee fully review the revised guidelines. I would also say
engraved on the front of the U.S. Supreme Court, the highest
court in our land, are the words ``Justice for All.'' Never
before have those words meant as much as they do now.
This committee needs to explore legislative options to make
certain this sort of injustice does not occur again, thus
ensuring true justice for all.
Again, thank you for holding this hearing. I look forward
to hearing from today's witnesses who will offer additional
insight into possible legislative solutions.
[The prepared statement of Hon. Elijah E. Cummings
follows:]
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Mr. Burton. I can assure you, Mr. Cummings, we will be
looking at legislative proposals. Obviously that would have to
go through the Judiciary Committee but we have a couple of
esteemed members of that committee with us and I am sure they
will be very helpful in getting things moved there.
We will now turn to our panel. Would you please rise so I
may swear you in?
[Witnesses sworn.]
Mr. Burton. Since Mr. Garo has been with us before and we
all know him, I think we will start with Mr. Garo and then move
right down the line, Mr. Garo, Mr. McGuigan, Professor Lawrence
and Professor Duke.
Mr. Garo.
STATEMENT OF VICTOR GARO, ESQ., ATTORNEY FOR JOSEPH SALVATI
Mr. Garo. Thank you, Mr. Chairman.
I wish to thank you once again for holding this hearing. It
is a story that has to be told and should be told.
I am very honored to be with this panel today. I have known
all of them for many years. Mr. McGuigan grew up in Medford
with me and I haven't seen Austin for over 40 years. We are
very proud of him in Medford. Professor Duke has a reputation
that is beyond compare and he has been very helpful to me in
many aspects of the Salvati case. To my left is also a good
friend, Professor Fred Lawrence, who to this day is still a
consultant to me on the Joe Salvati matter and has been a great
help to us.
I always thought how do I begin when I address this
honorable committee on matters so serious and I don't take it
lightly, so I would like to begin as follows, Mr. Chairman.
Life, liberty and the pursuit of happiness, famed words
from our Constitution but the Federal Government in Boston and
to the FBI these words meant nothing because it was the FBI who
determined who had life, who got liberty and who was able to
pursue happiness. They alone made that decision. Now we know
those who did get life, liberty and the pursuit of happiness.
They were serial killers. They were Joe ``the Animal'' Barboza,
Steven ``the Rifleman'' Flemmi, James Whitey Bulger. They were
allowed to pursue their happiness with the protection of the
FBI. Their pursuit of terror allegedly included killing of
witnesses, killing respectable businessmen, raping young women
in their neighborhood and killing girlfriends as they tired of
them, and the list goes on and on.
On the other hand, we have Joe Salvati. Joe Salvati, not a
man of power, position or means but yet a human being who was a
husband, a father. He was denied and they were denied their
American dream of life, liberty and the pursuit of happiness
for circumstances that were beyond their control.
The Federal Government, as we have seen, has allowed
Barboza to kill again and again. I say to you, Mr. Chairman,
under full oath before this committee, there was more evidence
that Barboza killed more than one person while in the Federal
Witness Protection Program and I say to you, Mr. Chairman, that
under oath, the Government knew and had evidence of
complicities of Joe Barboza killing other people while in the
Federal Witness Protection Program.
We had a recent witness who stated that he believes to this
day that Joe Barboza told the truth, even though there is an
incredible volume of evidence showing it the other way. The
Federal Government wants this committee and wants those people
out there listening to this, and for those write about this, to
believe that Joe Barboza would kill 25 to 30 people, that he
would maim them, disfigure them, stab them, but he would never
lie because that is where he drew the line. Not once in that
testimony was there a hint of maybe we didn't believe him,
maybe we shouldn't have believed him but we did believe him.
The following questions beg answers. What was so important
from the information that Steven Flemmi was giving to the FBI
in the early 1960's that warranted him to be so protected in
the top echelon informant program? What cases were brought? Who
got indicted? What murders did the FBI prevent from all the
intelligence they received? We now know, Mr. Chairman, under
your guidance, that they knew Teddy Deegan was going to get
killed and they didn't prevent that murder.
Mr. Salvati and his wife are here, Mr. Chairman and members
of the committee, because they wanted to show respect to the
committee. They know how hard and how diligent the committee
has worked for well over a year. You have shown not only to us
but to the entire country that the little people have access to
the government.
You all know I am not a hot shot lawyer. I come from a
small town. I am a one-man law office, born of a mother who was
an orphan at age 3 and a father born into abject poverty. Joe,
his wife and four children, just ordinary citizens, had their
lives taken away from them.
I was always told by my parents that when people do
something good, you should tell them while they are alive and
you have the opportunity. Mr. Chairman, I would just like to
make these statements. I want to thank the following members:
Representative Barr for the understanding and knowledge he
showed in his questioning throughout these hearings; I want to
thank Mr. LaTourette for the zeal and tenacity that he has
always shown in his questioning, even regarding how he felt
about the testimony of the Justice Department; I would like to
also thank Representative Waxman for his ability to gather
support from the Democratic side so as to not make this a
partisan issue; I would like to thank Representative Tierney
for doing much legal research and his ability to ask the tough
questions; and I would also like to thank Representative
Delahunt, a former prosecutor who had the courage to stand up
and be counted when he didn't have to. I respect you, Mr.
Delahunt for your willingness to spend your free home time to
come to my office and sit with me for hours upon hours to learn
about this case. I thank you highly.
Representative Shays, I thank you for your ability to grasp
the importance of this case and bringing it to the attention of
the chairman. I also wish to thank you personally for your kind
and gentle words that you have always spoken to my clients, Mr.
and Mrs. Salvati.
Mr. Chairman, if we were to look up the definition of what
a leader is, your picture has to be in the dictionary. You have
shown to all that you are a man of great principle and that you
believe in what you fight for, even to the degree that you are
willing to take on the President of the United States. How much
more does our country need to know where a leader is willing to
do that, even in his own party. You have been an example to all
of those, Mr. Chairman, that want to do the right thing.
Last, I would like to make some comments about Mr. Jim
Wilson. I cannot believe, Mr. Wilson, it has been over a year
since we started talking about this case. I have found Mr.
Wilson to be a man of great principle. I think he is a great
example of dedication and his staff has followed him and worked
so closely with him. He is a man I have known that never leaves
a stone unturned, a man who has tried to get to the bottom of
this cesspool that we call the Deegan murder case. His work
ethic should be a shining example of how our tax dollars are
being spent and many don't know what a heavy heart he has had
for these last couple of months for something personal in his
life. All I can say, Mr. Wilson, you are a man among men and I
am proud and honored to call you my friend.
I am here to make some suggestions to this committee for
appropriate legislation. As you know, our quest has always been
to use your power and wisdom to enact appropriate legislation
so that another family will never have to endure the nightmare
and hardships that this family has experienced. The time has
come to prosecute the dishonest prosecutors, not those that
work on a daily basis and do the work they have taken a sacred
oath to perform. I, along with Mr. LaTourette, agree that most
do but sadly some don't follow their sacred oath.
What I am going to suggest is not going to affect the
honest prosecutors. It is only going to affect the dishonest
prosecutors. My first suggestion is that when there is an
intentional withholding of exculpatory evidence from the
defense in a criminal case, there should be no statute of
limitations defense for the parties who have violated their
oath. Suggestion two, when there has been an intentional
withholding of exculpatory evidence from the defense in a
criminal case, there should be a mandatory minimum jail
sentence. The sentence might be that equal to under the statute
if there was a 10-year punishment, 10 years, or equal to what
the defendant received as a sentence in the case. This is after
the case has been overturned and dismissed and the evidence is
shown to be hidden intentionally.
I was sent recently a document and I would like to quote
from it. It is ``Federal Grand Jury Reform Bill and Bill of
Rights'' put out by the National Association of Criminal
Defense Lawyers. It was sent to me by Mr. Kyle O'Dowd, a
legislative director for the National Association. I would like
to read from page 3.
``Indeed, as far back as 1990, what disciplinary action it
had taken in each of the ten cases in which Federal judges had
made written findings of prosecutorial misconduct. After a
lengthy delay, the panel was finally informed by the Office of
Professional Responsibility that `No disciplinary action has
been taken in any of the ten cases.' The subcommittee observed
repeated findings of no misconduct and the Department's failure
to explain its disagreements with findings of misconduct by the
courts raises serious questions regarding what it considers
prosecutorial misconduct.''
Mr. Burton. Mr. Garo, first of all, let me just say we
really, really appreciate your testimony. Could we have the
rest submitted for the record and then we will get to any
additional comments you would like to make at the end of
questioning?
Mr. Garo. Yes, sir.
Mr. Burton. If you have a final comment or two you would
like to make real quickly, we can go ahead with that.
Mr. Garo. That I do.
I believe there is an epidemic here in the United States
and that is about the criminal cases that are being overturned
on a daily and weekly basis through DNA testing, overzealous
prosecution and hidden evidence. But what happens to those
people who have hidden that evidence? What happens to them? My
evidence and research shows that since 1963 when Brady v.
Maryland came down from the Supreme Court of the United States,
in over 40 years, there has been less than a handful of
prosecutions of thousands of cases that have been overturned.
In conclusion, we all know what awesome power the
government has over our lives. It becomes even more evident
when they are trying to take away a person's freedom or worse
yet, their life. In seeing the tragedy of the Deegan murder
investigation and prosecution unfold, we are mindful that our
justice system is not perfect.
When the justice system hurts one of us, it has a ripple
effect on all of us. We cannot allow the justice system to
function as it has in Boston for the last 40 years. You, the
Congress, have the right and the power to right this wrong.
Thank you.
[The prepared statement of Mr. Garo follows:]
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Mr. Burton. Mr. Garo, I can assure you that your
recommendations on legislative action will be closely
scrutinized and there will be some legislation put forth to the
Judiciary Committee that will deal with those issues.
Mr. McGuigan, I understand you are from Connecticut but you
grew up in Massachusetts, is that right?
Mr. McGuigan. That is correct, Congressman.
Mr. Burton. I just wanted to make sure because Mr. Shays
brought that to my attention.
Mr. McGuigan. Mr. Shays has regretted my birth in
Massachusetts for many years.
Mr. Burton. Yes, I know. He is a real strong supporter of
Connecticut but we will let that pass.
Mr. McGuigan, you can testify now.
STATEMENT OF AUSTIN MCGUIGAN, FORMER CONNECTICUT CHIEF STATE'S
ATTORNEY
Mr. McGuigan. First of all, I would like to thank you and
the Members of Congress and counsel for the opportunity to be
here today. I would say just in passing that after the death of
witnesses in 1982, quite frankly, I never thought that I would
be testifying in Congress about the events that happened in the
1970's and 1980's, and the coverups that we perceived. I
thought they had done their job and they had won. To me, it is
touching today that I am here. Some people who worked so hard
to uncover the truth have long passed away and didn't have an
opportunity to see justice finally have an opportunity to come
out.
It has been many years since the President's Report on the
Administration of Justice and Organized Crime which urged us to
conduct this great war in 1967, and we passed legislation for
wiretapping and the RICO statutes and there was funding for
organized crime units where Federal units were established in
most of the major cities in America. Local units were formed,
many times with Federal assistance. I will say at the beginning
there were promises that this war would be fought in a
cooperative manner between State and local prosecutors and the
Federal Government, but that promise never happened.
I would also comment that the war on the LCN, if viewed
through the rearview mirror, has resulted in a substantial
reduction, if not destruction, of most of its business
activities. There were a great many convictions. I could say
that the legalization of gambling and other things may have
deprived their revenue source and cut out those groups to a
great degree in and of itself, and there has been a rise in all
new organized crime units in the drug trade, but I will leave
that for another day.
I would point out there were tensions that were clear
between State and local prosecutors and investigators and the
Federal Government from the very beginning. These tensions have
been exacerbated over the years and I think it is something not
for this committee to deal with today, but for Congress to
think that what has occurred over the last 30 years is the
Federalization of the criminal laws. Many criminal statutes
which were the province of the District Attorney and the
State's Attorney and the Attorney General have been
Federalized. They have been Federalized and the funding has
been skewed to the Federal Government, with the idea that
somehow the Federal Government can provide better answers.
I think in looking at this case, we see that federalism did
not work, that federalism went astray, that the proper balance
between State and local prosecutors and Federal prosecutors was
unhinged, and the growing arrogance and power of the Federal
Government's ability to prosecute denied State prosecutors the
information they were entitled to because they had the primary
jurisdiction to prosecute these cases.
In Boston, the war we started on organized crime went
amuck. It is clear that major organized crime figures operating
as informants or, better still, under the guise of informants,
were permitted to engage in racketeering activities with a
wink, if not the tactic approval, of Federal agents. Violent
crimes, including murders by so-called informants, were ignored
at the whim of law enforcement officers, and I think this is
important, who were apparently accountable to no one in the
name of intelligence gathering. I was a foreign military
intelligence special agent and I understand this. State and
local prosecutions of violent criminals were undermined and
investigations were betrayed.
Many, and I have heard this argument, have ascribed this
behavior to overzealous agents using informants in the mistaken
belief that the end justified the means. In other words, they
wanted convictions and tended to ignore exculpatory
information. I would point out that this explanation defies the
logic of what occurred in Boston, MA, and throughout New
England. It oversimplifies a process where Federal officers
betrayed the public trust out of more than overzealousness.
Some of these people have already pled guilty to crimes
involving corruption in their decisionmaking process.
Federal agents, while they were denying State and local
requests for information, were providing information to former
FBI agents who were employed by the very businesses that were
under investigation. This is more incredible when one realizes
that despite official requests by State and local officials,
the same information provided to those agencies was denied to
the agencies mandated by law to prosecute. I am going to give
you examples of this.
The Connecticut Statewide Organized Crime Task Force, and I
was the chief prosecutor from 1975 to 1978 and the assistant
from 1973 to 1974, began in the fall of 1975 an investigation
into the opening of a Bridgeport Jai Alai gambling facility or
``fronton.'' We uncovered in our investigation meetings between
major New York and New Jersey LCN figures and the President of
Bridgeport Jai Alai. We determined that a loan from the Central
State Teamsters Fund had funded the entire operation. We did
not have the jurisdiction to investigate this case to the
fullest. The meetings were occurring in New Jersey and New
York; the loans were coming out of Chicago.
We initiated a grand jury and then we conducted a license
revocation hearing. Bridgeport was supposed to open in a couple
weeks. We revoked their license for connections to organized
crime figures. We attempted to turn over that information to
the Federal Government because frankly we thought the
individuals involved were LCN, one of whom supposedly had been
implicated in the Hoffa murder, Tony Provenzano, we turned over
that information and frankly we seemed to get no interest from
the Federal Government whatsoever.
We then conducted an investigation and we could not
understand why but in looking through the rearview mirror, why
becomes clear. We then conducted an investigation regarding
World Jai Alai. We were doing the licensing investigation to
determine whether or not they were suitable. They were going to
open in Hartford with its president, John B. Callahan, formerly
of Boston, MA. We requested information about Callahan from
Federal law enforcement agencies, official requests for a
Statewide Organized Crime Task Force background investigation.
We wanted derogatory information. We came up with a big zero.
We had nothing on this gentleman, no derogatory information.
World Jai Alai had, and we met a number of ex-FBI agents
engaged in security. One of them who has testified before this
committee, was the head of security and formerly worked in
Boston on organized crime involving the Winter Hill Gang. He
was thoroughly familiar with this information. He had no
derogatory information. It was Paul Rico.
Despite the lack of Federal help, literally on a whim we
decided to do a surveillance of John B. Callahan when he left
the meeting with us in Hartford. He said he was going to Miami.
We followed him to Boston. He went to Clarks Turn of the
Century Cafe. We watched him there. He said he was in Miami. We
had no idea of the people with whom he was meeting. We couldn't
identify any of these people. We knew one thing: Callahan told
us he was in Miami. He called us the next day and said he was
in Miami and he was actually in a motel room in Boston.
We couldn't figure out why, so I took a trip to Boston.
With the assistance of the Suffolk County Organized Crime
Prosecution Unit, Chief Prosecutor Tom Dwyer, when I brought up
Callahan's name, he said, ``organized crime connections, Winter
Hill Gang.'' I almost fell on the floor since we had zero on
this guy. He said, ``we did surveillances. He was a character
witness in a shooting involving one Brian Halloran. We
surveilled him and he had meetings with the Winter Hill Gang,
John Martorano, the Flemmis, Howie Winter, and so forth.'' He
provided me with that information and I was somewhat puzzled
how this information was not available to the FBI security
people at World Jai Alai, who formerly worked in Boston and had
access to this information. They were seemingly unable to
develop this information until we scheduled a hearing for
Callahan on May 3, 1976. At that time, shortly before the
meeting, Callahan resigned because World Jai Alai's security
officer was able to learn of our investigation.
Mr. Delahunt. Could you identify that security officer?
Mr. McGuigan. That is H. Paul Rico.
Mr. Delahunt. The former FBI agent who took the fifth
amendment a couple of weeks ago?
Mr. McGuigan. That is correct. He then received the
information, and I know not from whom. Someone told the World
Jai Alai people. They had him resign before we could secure his
testimony and before he was to attend our meeting. We had no
interstate subpoena for him and were unable to secure his
testimony. They replaced him with his former partner and these
people were licensed.
A correction in my written statement, on page 4, the second
line, it should read January 1976 not 1975. We did learn that
the Federal Government was made aware that allegations
concerning Callahan were made that he might be involved in loan
sharking with the Winter Hill Gang and James Martorano. This
information was provided to Mr. Rico who did not provide it to
us. It was not provided to us and I do not know what Federal
officials provided the information or what officials provided
it to Rico. All I know is we were not given the information
when we made official requests, while the information was
provided to others.
Not only did they fail to learn this, when they did learn
it, they didn't disclose it to us. Until we surveilled
Callahan, this information was not available to us. When they
realized we had him, he resigned.
We also learned that a Winter Hill Gang associate had been
made the head of the food and beverage concession at World Jai
Alai, Miami. The gentleman was identified by an FBI
intelligence report from Boston, as a Winter Hill known
associate by the name of Bryan McNeilly. How he got to be in
this position given the fact that FBI agents in Boston were
running the security is best left for somebody else to explain.
We looked with sort of a jaundiced eye. They were given a
situation of keeping organized crime out and from our
perspective, organized crime in World Jai Alai were being made
to feel at home.
After the resignation of Callahan, World Jai Alai opened
and we started to conduct investigations involving player
fixing in Jai Alai. These were first revealed by an
investigative reporter for the Hartford Courant, Ted Driscoll.
We followed up on this information. He was able to find this
out. We had not been looking at it but we followed up and
obtained a number of convictions in a game we had been assured
was unfixable, absolutely unfixable. They all confessed to
fixing it.
Our jurisdiction did not allow us to conduct an
investigation on that outside our borders. To my knowledge, no
national agency has ever conducted an investigation regarding
that, despite the fact that the Winter Hill people who were
attempting to infiltrate World Jai Alai were involved in a
major horse race fixing scandal all over the northeast. Howie
Winter and others were convicted of that. I believe John
Martorano was in that case but fled.
In 1980, Roger Wheeler was the president of World Jai Alai.
Roger Wheeler bought the company in 1978. Apparently he had
been offered the company for sale by Mr. Callahan in mid-1976.
This was strange since Callahan supposedly resigned in April
1976, but far be it for me to understand the connections
between Mr. Callahan and who was really running World Jai Alai.
Roger Wheeler bought it. He told our investigator, Inspector
George Ryalls, that he felt confident that he was OK because he
had numerous FBI agents who were there to ensure the integrity
of the process.
He was licensed because there was absolutely no derogatory
information about him and he seemed to be an outstanding
businessman. He was killed in 1981 at the Southern Hills
Country Club in Tulsa. We immediately decided to open an
investigation to see if there was a link between the
allegations being made in the Courant of skimming in Jai Alai,
the Winter Hill Gang and the killing of Mr. Wheeler. There were
law enforcement rumors that the Winter Hill Gang had conducted
this murder. We were unable to confirm it.
In May 1982, Mr. Brian Halloran, who comes back as the
person involved in an assault where Callahan testified, was
killed in south Boston. We learned he was killed after being
denied Federal witness protection. Mr. Halloran, and I cannot
understand his logic, had naively decided to provide firsthand
information concerning the Wheeler killing to the FBI in
Boston. I would have questioned his wisdom but I wasn't
involved. He implicated John B. Callahan, John Martorano,
Whitey Bulger and Steve Flemmi and other members of the Winter
Hill Gang, and we have heard that he implicated possible law
enforcement officers. I do not know that since I do not have
the report. We were not given this information.
Not surprisingly, the Federal authorities in Boston having
firsthand information corroborated by the guys connected to
Callahan regarding these individuals, decided that Mr.
Halloran's testimony or information was not credible. I believe
the information has now borne out to be true. Mr. Halloran was
killed and when he was being killed perhaps he was surprised
his information wouldn't warrant witness protection. He was
talking about the killing of the president of Telex. You would
think that would warrant witness protection.
I must tell you we in Connecticut were not surprised he
didn't get Federal witness protection. In fact, we firmly
believed he had somehow been burned by the people with whom he
was talking. That is what we believed.
Callahan was killed in Florida shortly thereafter. We had
contacted the Dade County Strike Force to try to interview
Callahan on August 3, 1982. We flew down there and when we
arrived, they called us and told us his body had just been
found at the Miami Airport.
These murders remain unsolved and it seemed the coverup had
succeeded until a Winter Hill Gang member, Steve Flemmi, I
believe, decided to claim that he had a free pass on the crime
train because of his status as an FBI informant. He claimed
essentially, they were allowing me to do this, so I get a free
ride on the railroad.
Judge Wolf had the integrity and the perseverance to
conduct prolonged hearings to unravel this tangled web but I
must say for all he has done, the tangled web needs more
unraveling, and I commend this committee for doing it. We dare
not forget that the discovery of these massive crimes based on
the tenacity of a few defense lawyers like Victor was more than
somewhat fortuitous. No one could have predicted that Steve
Flemmi would have claimed a free pass on the crime train. Had
he been tipped off slightly earlier, he would have fled like
Mr. Bulger and never made the claim.
Therefore, reforms must be instituted to stop the cozy
arrangements between informants and agents. They must be
subject to strict scrutiny and constant review. Contact between
prior and current agents must be circumscribed, particularly
when the agents are working in businesses that are under
investigation. They provide a veneer of respectability for
those businesses. When you are investigating, I can tell you
that you do not receive a warm reception from present agents
because they believe your thought process is wrong, having been
guaranteed that all is well in the world of Jai Alai. All was
not well in the world of Jai Alai.
Information regarding State and local crimes must be
presumptively provided to local prosecutors unless there are
documented reasons why such should not be done. I believe they
should be submitted to a court, requiring the contrary
conclusion on the basis of what crimes we permit people to
commit in this country and have no one accountable for the
decision to allow that to happen. In that regard, I have a
quote from Justice Brandeis from a 1928 wiretapping case: ``If
the Government becomes a lawbreaker, it breeds contempt for
law; it invites every man to become a law unto himself; it
invites anarchy. To declare that in the administration of the
criminal law the end justifies the means, to declare that the
Government may commit crimes in order to secure the conviction
of a private criminal, would bring terrible retribution.
Against that pernicious doctrine this Court should resolutely
set its face.'' I would echo those comments of Judge Brandeis.
This Congress should resolutely set its face against that
pernicious doctrine.
[The prepared statement of Mr. McGuigan follows:]
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Mr. Burton. We are going to do our best to do that. Let me
ask you one question. That is, these documents you alluded to,
do you believe they are in the control of the FBI at the
present time?
Mr. McGuigan. I am positive, they have to be.
Mr. Burton. Those are documents we ought to see if we can
get as well. We ought to send another subpoena over there and
beat on that issue as well, which we will.
Mr. Duke and Mr. Lawrence, I am sorry to keep you waiting
for your testimony. We have a vote on the floor. I would urge
the Members to rush over there, vote and come right back
because we want to get to questioning as quickly as possible.
We will be back in about 10 or 15 minutes.
[Recess.]
Mr. Burton. If we could get everybody reassembled, we will
get back to the hearing. There will be Members coming back in.
I appreciate your tolerance and waiting for so long while we
have to run back and forth to vote. I do not think there will
be any more interruptions.
OK, our next witness according to my schedule here would be
Mr. Lawrence. Mr. Duke, we are saving the best for last. So,
Mr. Lawrence, do you want to proceed.
STATEMENT OF FREDERICK M. LAWRENCE, ESQ., BOSTON UNIVERSITY LAW
PROFESSOR
Mr. Lawrence. Thank you, Mr. Chairman. I am honored by the
opportunity to appear before this committee and testify this
morning. I will be submitting an expanded version of my remarks
this morning and I would hope those could be incorporated into
the record.
Mr. Burton. They shall be.
Mr. Lawrence. Mr. Chairman, Federal civil rights
enforcement and civil rights crimes, in particular, have been
the key focus of my career. During my 14 years at Boston
University, and I would be remiss if I did not briefly mention
that we take Victor Garo as one of our most distinguished
alumni, I cannot take any personal credit for this since
Victor's time at BU was a little before my time, but----
Mr. Burton. Excuse me, didn't Bob Cousey go to Boston?
Mr. Lawrence. I am a New York Knicks fan myself, Mr.
Chairman.
Mr. Burton. I know, but I just thought I would point that
out. Mr. Garo, did you play basketball?
Mr. Garo. Yes, sir.
Mr. Burton. Did you. Well, Cousey, I think, went to Boston
University. He was one of my heroes because he was a shorter
guy like me. But, anyhow, go ahead.
Mr. Lawrence. I think he was at Boston College, actually.
Mr. Burton. Oh, he went to Boston College?
Mr. Garo. Holy Cross.
Mr. Burton. Oh, he went to Holy Cross. Well, excuse my
ignorance. Go ahead, Mr. Lawrence.
Mr. Lawrence. I hope all of this does not come out of my
time, Mr. Chairman.
For centuries, Mr. Chairman, societies have asked the
question first posed by the famous Roman writer Juvenal: ``Who
will guard us from the guardians? Who will guard the guardians
themselves?'' I say as a former assistant U.S. attorney and I
believe as a former assistant U.S. attorney that the vast
majority of people involved in law enforcement are decent,
committed, hard-working, dedicated, and law-abiding public
servants.
There is unfortunately, however, also no doubt that there
are those cases in which the public trust placed in law
enforcement officials is abused to a serious degree. Many of
these cases can be handled or might be handled sufficiently as
administrative matters within a law enforcement agency,
although, as Mr. Garo mentioned earlier this morning, even the
Department of Justice has had its limitations on what it can
achieve administratively. But there are those cases that rise
above the level that ought to be treated administratively and
that constitute criminal violations of a victim's civil rights.
Such cases call for the strongest possible response from the
Federal criminal justice system and the imposition of serious
criminal sanctions. It is these cases of criminal civil rights
that I discuss in my testimony.
I discuss a number of interrelated issues. First, the key
role that criminal sanctions have in fact played in Federal
civil rights enforcement. Second, the particular problems that
arise when criminal civil rights laws are applied to misconduct
by law enforcement officials. A suggested solution to these
problems, in part, is to focus on the mental state requirement
for these civil rights crimes. And finally, some particular
concerns surrounding statutes of limitations.
Criminal sanctions have, in fact, always played a key role
in Federal civil rights enforcement. When we think about
Federal civil rights statutes, it is typical today to think of
the civil statutes primarily, sometimes exclusively, such as
Section 1983 of Title 42. But, in fact, the Reconstruction Era
statutes themselves were replete with criminal provisions,
going back to the Civil Rights Act of 1866, the very first
piece of legislation during the Reconstruction Era. In fact, in
many ways, if you look at the 1866 and 1870 statutes, they were
largely criminal statutes, in part because civil enforcement
was not seen to be a very viable option for newly freed slaves
or for Southern Unionists whose rights were being violated.
So, in fact, the criminal sanctions available in this area
are of long-standing. The enforcement story is a sadder story,
particularly in the period following 1873 or 1875, when the
Federal Government largely lost interest in enforcing these
laws and the Supreme Court indeed struck down many aspects of
them. But the laws remained on the books and in the 20th
century criminal enforcement of civil rights became much more
current and much more used.
The application of these laws in the particular kind of
area that we are discussing today, namely, misconduct by law
enforcement officials, really did not start until the 1930's
and 1940's. The celebrated, indeed notorious case of Screws v.
United States, involving a case of Claude Screws, a sheriff
from Newton, GA, and two of his colleagues, arrested and beat
and left to die a man named Robert Hall who was what we would
today call a civil rights activist. They would not necessarily
have used that term at the time. But they beat Bobby Hall and
they left him there to die and he did indeed die. No action was
taken in the State courts in Georgia, not so surprisingly, and
a Federal criminal civil rights charge was brought against
Screws and his two co-defendants and that case was tried to a
jury and they were convicted. And if the story ended there, I
would be on to the next topic on my outline. Unfortunately, the
story did not end there.
The case went up to the Supreme Court and their convictions
were struck down. Their convictions were struck down for a
number of reasons, but the one I wish to focus on was that the
court was concerned that the statute that would allow for
punishment of civil rights violations, and read almost as
broadly as that, Section 242, violation of rights under color
of law, was potentially vague, did not specify what rights were
involved. And that when you talked about a specific right, the
right to serve on a jury, the right to vote, that was a
specific right and there would be no vagueness problem in such
a statute. But where the right was a civil right generally,
indeed in Screws the rights were the rights that Mr. Garo
talked about earlier, life, liberty, the right not to be beaten
to death by law enforcement officers, one would not have
thought that right had to be enumerated, but the Supreme Court
of the United States said that indeed it did.
As a result, the court read the word ``willfully'' in that
statute in a very powerful and indeed very troublesome way, to
require that law enforcement officers to be criminally liable
under Section 242 would have to have willfully violated a
Constitutional right which actually required in a ``mens rea''-
like sense some specific Constitutional intent, some specific
state of mind with respect to the Constitution. Lest this
seemed too hyper-technical and not have an impact on the
ground, the impact on the ground was felt immediately. Screws
and his two colleagues, co-defendants were retired. They were
acquitted.
The head of the Civil Rights Section, as it was then
called, of the Department of Justice said afterwards, ``The
judges' charge, while proper under the Screws case, was clearly
very damaging. In short, the burden that the Government now has
under the general theme of the Screws case in providing the
necessary, willful intent in such cases is going to continue to
buildup very high hills to climb.'' And indeed it has. It has
built up very high hills to climb.
As I suggest in greater length in my written testimony,
what this committee ought to play a role in being involved in
is to look to Congress, to the Judiciary Committee, to
reconfigure the mental state requirement and to look to a kind
of what I call Constitutional negligence, Constitutional
negligence in the sense that a law enforcement officer has no
business saying I did not realize that was a civil right
violation. If the court finds he should have known, that ought
to be sufficient.
Justice Wiley Rutledge said it in Screws better than I can.
He said, ``If law enforcement officers do not know the victim's
basic civil rights, they should, for they assume that duty when
they assume their office. They know or should know when they
pass the limits of their authority. And when they enter such a
domain in dealing with citizen's rights, they should do so at
their peril.'' That was good advice in 1945, it remains good
advice in 2002. That is a solution that Congress could play a
significant part in.
Finally, statutes of limitations on civil rights crimes
committed by public officials must be interpreted in such a way
that there is adequate time for these miscarriages of justice
to be investigated and punished as Federal civil rights crimes
violations. This is particularly true where the very gravamen
of the crime involves withholding of documents, withholding of
evidence, and a continued cover-up. There should never be a
problem of a statute of limitations running out when the wrong-
doer himself is responsible for the difficulty in bringing the
charges.
The application of criminal civil rights sanctions to law
enforcement officers is obviously a highly troublesome subject.
Ordinarily, Mr. Chairman, we would wish to give law enforcement
the widest possible berth in the performance of their vital
functions. This is particularly true now in a time of threat
from terrorism both abroad and as we found out so recently and
so tragically here at home. But I would say it is not in spite
of the current climate that law enforcement must be held to the
highest standards, it is rather precisely because of the
current climate that law enforcement must be held to these
standards.
It was during World War II, certainly a time of threat
abroad and at home, that Justice Douglas in his opinion for the
court in Screws described it as, ``This case involves a
shocking and revolting episode in law enforcement.'' Could
there be a better description, Mr. Chairman, of the events
surrounding the false imprisonment of Joseph Salvati over three
decades for a crime he did not commit? The crime of the way in
which Mr. Salvati was treated is a shocking and revolting
episode in law enforcement.
The means by which Mr. Salvati came to be falsely
imprisoned and the surrounding events of the misconduct of law
enforcement in Boston and indeed in New England over this
period have been discussed by other witnesses and I know will
continue to occupy this committee, and I commend the committee
for its attention. The purpose of my testimony is to take this
shocking and revolting episode in law enforcement as a point of
departure to begin to provide an answer to Juvenal's question
centuries ago. The guarding of the guardians must begin with
vigorous enforcement of this Nation's criminal civil rights
laws.
[The prepared statement of Mr. Lawrence follows:]
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Mr. Burton. Thank you very much. I certainly appreciate
that and we will try to take all of your recommendations and
keep them in mind when we draft legislation to try to correct
these inequities.
Mr. Duke.
STATEMENT OF STEVEN DUKE, ESQ., YALE UNIVERSITY LAW PROFESSOR
Mr. Duke. Thank you, Mr. Chairman. I am tempted to use all
of my allotted time praising the committee and the work it is
doing. But rather than do that, I would just call your
attention to some extensive praise in my written remarks, and I
would incorporate Mr. Garo's earlier remarks, and simply say
that I am very honored to have a small part in your
deliberations.
Before I go to my specific recommendations, I would like to
respond briefly to your concern, Mr. Chairman, and the concern
of others about how extensive this kind of misconduct is, that
is, withholding of exculpatory evidence and allowing witnesses
to testify falsely when the FBI knew that they were testifying
falsely and failing to turn that over. I do not know, to use
Mr. Delahunt's expression, that there is a culture of
concealment in the FBI. But I do know, as I have indicated in
my prepared remarks, that two decades after the Boston thing
the same thing happened in New Jersey. The New Jersey FBI had a
report which indicated who the murderers were and it allowed
its witnesses to testify to implicate people that its own
report said were innocent. And it continues to conceal that
fact.
As I am sure the committee has received many complaints
from strangers----
Mr. Burton. Excuse me, Mr. Duke. I do not want to interrupt
your testimony, but I want to make sure that we know all the
specifics about that case in New Jersey because we will be
sending an additional subpoena over to Justice to make sure
that we get those documents as well. So if there is anything
that we do not have, be sure to talk to Mr. Wilson at the
conclusion of the hearing so we get that information.
Mr. Duke. Absolutely. Thank you very much.
With respect to my specific recommendations, we need to do
something to confine and regulate our bribery and extortion of
prosecution witnesses. At the present time, there appears to be
no legal limitation whatsoever on the deals that can be cut
between prosecutors and potential witnesses. We have the Joe
Barboza case where he essentially gets immunity from 20 or 30
murders. We have Sammy Gravano, more recently, where he got
immunity from 19 murders. We turn these people loose, we give
them new identities, we give them phony Social Security
numbers, and so forth, and set them loose on the unsuspecting
public. It seems to me we need to take a hard look at whether
we need to do that. Do we need to turn serial killers loose on
the public. Should there not be some legislative limits on the
kinds of deals that can be cut with witnesses of this type.
I am first to confess I do not know exactly what the
content of such legislation should be. But there must be some
room for legislation. As it now stands, the matter is totally
lawless. The Tenth Circuit Court of Appeals a couple of years
ago said the prohibition against bribery of witnesses does not
apply to the Federal Government. The statute prohibits bribery
by whoever does it. The Tenth Circuit said ``whoever'' does not
include agents of the U.S. Government.
I think we also need to require corroboration from
witnesses like Joe Barboza. As of now there is no corroboration
requirement under Federal law. Anybody can get the death
penalty on the testimony of Joe Barboza uncorroborated or
anyone else.
I think, second, we need to make it a crime for a
prosecutor to willfully suppress evidence of innocence or
evidence that contradicts the testimony of a witness offered by
that prosecutor. The criminal statute should make clear that is
a continuous obligation; the obligation to disclose exculpatory
evidence does not end with the prosecution, it is ongoing and
forever. And a criminal statute should make that clear.
Mr. Garo suggested that we extend the time limit on
prosecuting miscarriages of justice, and I endorse that. I
think we also should take a look at the Anti-Terrorism and
Effective Death Penalty Act of 1996 insofar as it imposes very
strict time limits on collateral attacks by people who have
been convicted of crimes. The ability of law enforcement and
prosecutors to suppress and conceal evidence is a very powerful
one, and as long as that remains in place, as long as we have
not effectively remedied that, there will be cases in which the
evidence of innocence comes long after the conviction. And that
statute imposes some rather harsh limitations.
I think we should also create an independent review
commission, such as they have in Great Britain, that reviews
claims of innocence by prisoners whose appeals have been
exhausted. The commission has subpoena power and it has access
to law enforcement files. It has been a very successful venture
in Great Britain.
Finally, I think we should eliminate absolute immunity of
prosecutors. Under current law, a prosecutor can suborn
perjury, can fabricate evidence, can lie to the court and
cannot be sued by the victim of his dishonesty. He has absolute
immunity. I do not think that is defensible. I think that
should be changed to a qualified immunity.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Duke follows:]
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Mr. Burton. Thank you, Mr. Duke.
We will start our questioning now. We have looked at this
Boston problem over a 35 year period and I am sure you all
agree that it is proper for us to focus on this. I would like
for each one of you to tell us, and I think you may have
covered this, some of you, in your testimony, what specific
things you think we ought to do as a Congress to correct these
horrible atrocities that have taken place. I think Mr. Garo
said we should increase the statute of limitations on perjury.
The thing I am after and I hope that we are able to glean from
you are the things that you feel are most important for us to
do legislatively to make sure that our law enforcement agencies
are stopped from doing this in the future.
Mr. Garo. Sure. The problem that I have always seen, Mr.
Chairman, in my over 37 years as an attorney is that there has
always been a culture of hiding exculpatory evidence. And the
playing field has never been level between the criminal defense
bar and prosecution. I agree with Mr. LaTourette as he said
that many prosecutors do the right thing and it is a tough
business and it is a tough job, and I agree with that. But
there are some out there that are just completely dishonest.
With increasing the statute of limitation time and, I had
been speaking, when I came here I had done my homework, I had
spoken with an assistant U.S. attorney and others and I asked
him, I said can you tell me, I told him what I was going to
suggest, do you think those are good suggestions. He said
absolutely. He said, and this was so key, Mr. Chairman, listen
to his words, he said to me, ``Victor, there is no incentive
for the prosecutor to give over these documents because they
are never accountable for their actions.''
Mr. Burton. So you think there should be a reasonable
statute of limitations, No. 1. And No. 2, if they knowingly
withhold exculpatory evidence, there ought to be some
criminal----
Mr. Garo. There should be a mandatory minimum jail
sentence, minimum mandatory jail sentence.
Mr. Burton. What kind of a sentence? How much?
Mr. Garo. Two ways, in my opinion. It could either be for
the crime for which the statute is, if it is a 10-year felony,
then if the cases are thrown out or overturned, he gets 10
years, or given the same penalty that the defendant received.
That is both for the prosecutor and the law enforcement
agencies that deal the same way.
Mr. Burton. OK. What about the period of time you are
talking about, the statute of limitations on this.
Mr. Garo. My opinion? I do not think there should be any
statute of limitations, defense, whatsoever for anybody who is
involved in the intentional withholding of exculpatory
evidence, especially in first degree murder cases.
Mr. Burton. OK. Any of the rest of you have a comment on
that?
Mr. Duke. My proposal is that there be a tolling of the
statute until the disclosure is made. So the statute----
Mr. Burton. Explain to me what you mean by tolling.
Mr. Duke. Well, in other words, the statute does not begin
to run until the revelation or the discovery of the exculpatory
evidence. That is, once you find that the crime has occurred,
then the criminal statute of 5 years begins to run.
Mr. Burton. Oh, I see. So you are saying if there is
exculpatory evidence that they have withheld, once it has been
discovered then there is a 5-year statute of limitations.
Mr. Duke. Yes.
Mr. Burton. Instead of having it open-ended.
Mr. Duke. Yes.
Mr. Burton. Mr. McGuigan.
Mr. McGuigan. I do not quite understand who is discovering
it. I do not understand. Are you saying that the prosecution
has discovered it? I do not understand the concept because who
is discovering the evidence. If the prosecutors are discovering
the evidence 10 years after the case is closed, are you
suggesting that the statute begins to run at that point?
Mr. Duke. It begins to run when the victim of the
disclosure has the evidence. In Mr. Salvati's case, that would
have been a year or two ago. Until that point, the statute
would not run.
Mr. Lawrence. Mr. Chairman, the criminal law could
profitably borrow from the civil rights law in this respect. In
a civil rights claim under Section 1983 for malicious
prosecution, the cause of action is not deemed to accrue until
the wrongful conviction is invalidated. Not just the evidence
is discovered, but the wrongful conviction is in fact
invalidated.
Mr. Duke. Right.
Mr. Lawrence. The criminal law could very profitably borrow
that and start the 5-year Federal statute of limitations
running from the time that a wrongful conviction is invalidated
and not before.
Mr. Burton. The Judiciary Committee, I am just kind of
thinking, and maybe you could comment on this, Mr. Delahunt, I
think to have an open-ended statute of limitations they might
frown upon that. But if you are talking about from the point of
discovery by the defense counsel, in this case Mr. Garo, 5
years running after that, that might be OK. We would have to
define that very clearly.
Mr. Shays, do you have----
Mr. Shays. I do not mind if you want to make them a 10-
minute series of questions.
Mr. Burton. OK. If a Federal prosecutor encourages
witnesses to lie, as in the case with Mr. Barboza where he was
encouraged to lie in exchange, or he himself commits perjury or
withholds evidence, should that be considered a major failing,
and what should be done about it?
Mr. Garo. In the sub----
Mr. Burton. In other words, we have an FBI agent, i.e., the
ones we have had before our committee, and they encourage false
testimony and we are able to find out about that, what kind of
penalty should be applied and what should be done?
Mr. Garo. In my opinion, mandatory minimum jail sentence
either equal to what the punishment is that was given for the
case that was overturned, or for what the punishment is for
that statute.
Mr. Lawrence. Mr. Chairman, just to quibble a bit, I think
if we focus too much on the length of the sentence, we are
going to be focusing on what turns out not to be the key piece
here. The hard thing in the Federal criminal civil rights area
has not been what exposure the defendant has, it is getting
convictions because of various kinds of traps that are laid for
unwary prosecutors. And I would be concerned with just focusing
on the sentence and then having a mandatory minimum sentence
that never gets put in place because of all sorts of traps that
fall in the way.
What I have in mind is that traditionally ``willfully'' in
this area has been thought of in a very strict term that makes
it very hard to convict law enforcement officials who say ``I
was trying to put a case together but I did not `willfully' in
that sense try to violate anyone's civil rights'' and I can
imagine ``I did not `willfully' suborn perjury. I was just
trying to put a case together and work with a witness.'' So I
think we are going to have to be very careful as to how----
Mr. Burton. And how would you do it?
Mr. Lawrence. I would say that the ``willful'' part refers
only to the underlying conduct, what would be a crime if it
were not a public official. That is to say, anyone who tells
someone else to lie, not a matter of putting the case together,
someone tells Barboza go ahead and say that: that is perjury.
Mr. Burton. Commit perjury.
Mr. Lawrence. That is perjury. And the only piece on top of
that for a public official is that he knew or should have known
that this was a violation of his duty, not that he willfully
did that, that he willfully violated someone's rights or he was
thinking in Constitutional terms.
Mr. Burton. And what kind of penalty would you impose?
Mr. Lawrence. I think the truth is the penalties that exist
under 241 and 242 today are adequate, because my experience in
prosecuting----
Mr. Burton. What are those penalties? I am not conversant
with that.
Mr. Lawrence. Where death results, and it is an intriguing
question here, if the death penalty were put in place because
of some prosecutor's misconduct, then up to life imprisonment
or death, otherwise 10 years.
Mr. Burton. Otherwise 10 years.
Mr. Lawrence. Yes.
Mr. Duke. Mr. Chairman, I think a major problem we have
overlooked in this discussion is who is going to prosecute the
prosecutor. That is the major problem. You can call these
things crimes all you want; they do not prosecute themselves.
How many prosecutors have been prosecuted for suborning perjury
in this country in the last decade? I can tell you none
federally, and probably not in the last 30 years.
Mr. Burton. What would you suggest be created to deal with
that problem?
Mr. Duke. Maybe it is a dirty word, but I think we ought to
think about creating an independent prosecutor.
Mr. Burton. Independent counsel.
Mr. Duke. Independent counsel.
Mr. Burton. Well I was not for doing away with the
independent counsel statute in the first place, so I would
support that.
Let me go to Mr. Delahunt. Mr. Delahunt, do you have some
questions?
Mr. Delahunt. Thank you, Mr. Chairman. This has been very
edifying testimony. And I think we are at the beginning stage
of really what should be a thoughtful, deliberative examination
of what we want to do in terms of addressing the obvious
problem. But let me address this to Mr. McGuigan. I think we
have achieved considerable progress in diagnosing the problem.
And the consequences impact, as I said earlier, both the
innocent defendant but also the community is put at risk
because information is not forthcoming so that law enforcement
other than, in this case, the FBI can do its job. In other
words, you have a situation where Joe Salvati's attorney at
trial did not receive exculpatory information, information that
would have exonerated him, hopefully information that never
would have been presented even to a grand jury. In the case
that Mr. McGuigan speaks to, the case of Jai Alai, Mr.
McGuigan, as a State prosecutor, wanted to proceed,
investigate, and put bad people in jail out of the community.
So I guess what I see as the essence of the problem is how
do we encourage or compel disclosure in information sharing by,
again in this specific case, the FBI. Mr. McGuigan, you know
that I served in a similar role as you did in Massachusetts. I
can tell you of a case involving a homicide in my jurisdiction,
and I am going to ask the chairman to send an appropriate
request for information to my old office, where an individual
was murdered, it is reported to me subsequently, years later,
that the FBI had information in its possession prior to the
homicide that the individual was at-risk, was a target for what
turned out to be a homicide. Subsequent to the homicide itself,
this particular informant of the FBI had information relative
to who committed the homicide, the perpetrators. It was never
brought to our attention. Very similar, obviously with
different players, different facts, but it was an organized
crime hit, by the way.
Mr. McGuigan. I have no doubt.
Mr. Delahunt. And you never had that information, neither
did I ever have that information. I just want to stress I think
we understand that what we are doing here, in addition to
protecting the innocent, is protecting the public. Mr.
McGuigan, do you see the problem as one of compelling the
Department of Justice and, specifically, the FBI to sharing
information with Federal and State law enforcement and
incorporating mechanisms so that this information is just not
disseminated in an irresponsible way, but in an appropriate,
responsible way to the Federal and State prosecutor and other
Federal agencies, by the way, that ought to know this
information to protect the American people and the people of
the neighborhoods whom you and I represented?
Mr. McGuigan. Absolutely. That is absolutely correct. I
said presumptively there has to be a law that mandates
disclosure in the absence of them providing an independent
review board compelling reasons why the information should not
be disclosed. If you look at the Salvati case, had they turned
over the exculpatory information in that case, they would have
known that Mr. Barboza was a liar, he would have never been in
witness protection, other people would be alive, his testimony
would have never been believed, and that would have been the
end of the matter. People are dead because they refused to turn
over the information.
Mr. Delahunt. Can you just imagine in your role as a former
chief prosecutor in the State of Connecticut putting an
individual in a Witness Protection Program, sending them across
the country knowing of the background, being aware that this
particular individual was responsible for 20-plus homicides,
without communicating that information to the local public
safety officials?
Mr. McGuigan. Absolutely incredible.
Mr. Delahunt. Unconscionable.
Mr. McGuigan. Unconscionable. And it is the arrogance of
Federal power which is accountable to no one and has received
Federal law after Federal law which has put them in a position
where they keep encroaching on State and local prosecutors and
have no respect for the true function of the State's attorney,
the district attorney who is to prosecute those crimes and
protect the people within his jurisdiction.
Mr. Delahunt. Are you familiar with a recent report within
the last 2 years that was authored by a commission chaired by
the former Attorney General of the United States Edward Meese?
Mr. McGuigan. I believe I am familiar with it.
Mr. Delahunt. And what it dealt with was the issue of
Federalization of crimes that are traditionally prosecuted at
the local and State level.
Mr. McGuigan. I am. I am a member of the American
Prosecutors Research Institute.
Mr. Delahunt. Then you know exactly what I am speaking to.
And I think it is a fair statement to say that Mr. Meese would
concur with what dialog we are having here today.
Mr. McGuigan. In principle, he clearly agrees. Because this
process has gone on for 30 years now, and it has gone on to the
demise of the citizens who are supposed to be protected by the
local district attorney.
Mr. Delahunt. Right. I just had staff circulate to you a
memorandum to an individual by the name of Mr. DeLoach, it is
dated November 15, 1968, and it is from a J.H. Gale. If you
could just peruse it for a moment and as I describe it. It is
an FBI internal memorandum, dated, like I said, November 15,
1968. You were speaking earlier about the concept of task
forces.
Mr. McGuigan. Correct.
Mr. Delahunt. I think this is so apropos because I would
suggest that one aspect of the problem is articulated in this
memorandum in terms of the reluctance to share information with
other law enforcement agencies.
Mr. McGuigan. Absolutely.
Mr. Delahunt. And let me read this into the record. This is
1968. We wonder how we got here. How did we get here? Because
this senior level, I believe that Mr. DeLoach was the deputy
directly reporting to Mr. Hoover, the Deputy Director of the
FBI, and I think the most pertinent sentence in this memorandum
is, ``Another principal objection is that the FBI's
accomplishments would be submerged in the claiming of credit by
the Task Force beyond its actual contribution, and they will
wind up grabbing the lion's share of favorable publicity.''
We have been in the business a long time, Mr. McGuigan. But
does this say it all? Let's just really put it right out on the
table.
Mr. McGuigan. This describes exactly what the relationship
is with the FBI and the Federal Government in the investigation
and prosecution of cases in State and local government.
Mr. Delahunt. And that was the case in the 1960's, in the
1970's, in 1980's----
Mr. McGuigan. Never changes.
Mr. Delahunt. And possibly led to the miscarriage of
justice not just of Joseph Salvati, OK, but in the case of
World Jai Alai.
Mr. McGuigan. Absolutely. And quite frankly, as I said
before, the cozy relationship between agents and former agents,
they have a stronger affinity and affiliation with former
agents and industries under investigation than they do with the
State people who are investigating the industry. You turn
around and see the people whom we are investigating, because
they are retired Federal officers, getting the information we
cannot get. Apparently, they trust them but they do not trust
us.
Mr. Delahunt. I will pose this question to the panel and
anyone is welcome to participate. But I would suspect that
there are statutes, Federal statutes today that would prohibit
and make it a violation of the U.S. Criminal Code the
dissemination of investigative material to anyone outside of
that agency. And yet we hear Mr. McGuigan say, and I think that
his statement is certainly credible, that after an agent
retires and goes and does security work somewhere he has access
to information that he or she has no right to access.
Mr. Lawrence, are you familiar with any of the statutes
that would apply to the dissemination of information coming
from the FBI or any other Federal investigatory agency?
Mr. Lawrence. At the very least, it would run afoul of
Department of Justice internal regulations. But I believe as
well it would violate Federal statutes. I think one of the
concerns, and Professor Duke alluded to this earlier, is we
have to think not only in terms of what laws are out there,
but, systemically, who is going to enforce them. If the
enforcement is going to come from the same people who are
involved in the conduct, it is pretty obvious to see that the
foxes are not going to be prosecuting themselves.
One of the suggestions for using other statutes, the civil
rights area is only one, is that you have prosecutors with a
particular mandate outside of the mainstream. That is the
theory of that approach.
Mr. Delahunt. Could I just have one more question as a
followup?
Mr. Burton. Sure.
Mr. Delahunt. Given that scenario that there possibly does
exist applicable Federal criminal statutes or that clearly
department policy would prohibit that dissemination, can any of
you point to a particular instance of investigation or
prosecution or some sort of civil action or administrative
action that would punish either a current agent for sending or
a retired agent from receiving confidential information
regarding investigations or prosecutions?
Mr. Lawrence. I know of no such case.
Mr. Delahunt. Professor Duke.
Mr. Duke. No.
Mr. Delahunt. I think this goes to support your premise.
Mr. Burton. Yes. That is one of the things that I think you
and I and others on the committee ought to take a hard look at
as far as legislation. And I am glad you are on the Judiciary
Committee, you can help us over there.
Mr. Shays.
Mr. Shays. I am going to be here till the end and Mr.
LaTourette has another meeting, so I am happy to yield.
Mr. Burton. The gentleman from Ohio.
Mr. LaTourette. Thank you, Mr. Chairman. I will not take a
tremendous amount of time because I have to do some
Transportation and Infrastructure business. I appreciate Mr.
Shays courtesy.
Mr. Burton. Well do not forget Indiana.
Mr. LaTourette. Indiana is next to Ohio, so I am sure we
will take care of it.
Mr. McGuigan, I was interested in your observations. There
is a lot of criticism being levelled at Federal agents and
Federal prosecutors. But I think the Congress is to blame for a
lot of this Federalization. There was a push in the 1960's to
go get organized crime. When I was prosecuting cases we had a
war on drugs. So a lot of us sit up here and we Federalize
crimes that were historically under the venue of the local
district attorney or prosecuting agency. My own experience was
that you would have the DEA swoop into town and they would be
interested in the big fish, the guy from Colombia or down
somewhere in the Caribbean, but did not really care if he was
selling rocks of crack cocaine to the kids in your
jurisdiction. And you have experienced the same sort of thing.
So while we rush to try and come up with more Federal
legislation to deal with the problem of a few bad apples, I
think we need to take a look in the mirror and maybe quit
Federalizing so many crimes and leave law enforcement to local
authorities where it historically belongs.
When Mr. Delahunt talked to you about that memorandum, I
can remember I had one pretty high profile case and DEA, FBI,
ATF, they were all involved and they could not put their
jackets on fast enough when the TV cameras showed up. So you
not only have the tension between local and Federal, you have a
budgetary tension between the ATF, the DEA, and the FBI. Does
that agree with your experience?
Mr. McGuigan. There is no question about that, the
Federalization of the criminal laws. You look at something like
the Economic Espionage Act and you really have to ask yourself,
what was somebody thinking when they decided to pass this. And
they Federalized one more. They have had about 30 prosecutions
in 5 years and they devoted an incredible amount of resources.
It does not seem to bear logic. Expansions into gang crimes
that were well-handled by State prosecutors occurred and, quite
frankly, cherry picking the few cases that they want, leaving
the local DA to prosecute all the rest of the cases and
undermining his funding abilities to get the sufficient
resources to handle it.
I think that we have come a long way from Henry Hyde's
remark that Federal criminal jurisdiction is interstitial. It
is now plenary in the sense that Congress over the last 30
years has expanded it. Even when the courts cut down on the
scope of the mail fraud statute, we turned right around and
expanded it all over again.
Mr. LaTourette. Right. I thank you for that. The other area
that I want to explore, and again sometimes when we Federalize
things we sort of rush to judgment, and from Professor Duke and
Professor Lawrence, Mr. Garo, and I think the chairman, I heard
mens rea standards that caused me some concern. I heard
``knowingly,'' I heard ``willfully,'' I heard ``negligence.''
Again, my observation and experience is most of the men and
women who engage in this work are good people. It is also my
observation and experience that although you have tragedies
like the Salvati case, you also have criminal defendants who
play the system time and time and time again. And I would hate
to give them another arrow in their quiver. I wish there was a
way we could separate, either through mens rea or something--I
sort of put criminal defendants in two categories. You have
some where they are dead-bang losers and they deserve whatever
punishment they get, and then you have some other cases where
there are some questions, be it questionable eye witness
testimony, be it scientific testimony, it could be a confession
that was coerced if that is a claim. But just one quick story.
I had a guy that stood up in court 1 day, he was accused of
and convicted of killing five people, he is on Ohio's death
row, he stood up during the sentencing phase and he said, ``I
killed these five people. I have been commanded to kill ten
thousand. So if you let me out, I am going to kill nine
thousand, nine hundred and ninety-five more.'' Twelve years
later he is still going through the habeas corpus system. In my
view, he should have been taken out to the apple tree and hung
years and years and years ago.
And so I think before we enhance their rights and punish
prosecutors, and I am really not in favor of this negligence
thing because I think that really opens up--I do not disagree
with you that if they have set the bar on ``willfully'' so high
that is too high a bar to get over. But negligence I think
really gives the criminal defendant, the dishonest criminal
defendant a club over prosecution. I do not know that we want
to go there.
But I wish we could winnow out some of these cases and,
sort of like when they separate the wheat from the chaff, the
no-brainers go over here, and the ones where DNA may clear it
up 10 years from now or we may have a Salvati case 35 years
that they go over in this particular direction. I think they
are not pretty simple but I think we could separate them, and I
wish that we would.
But Professor Lawrence, maybe you could just spend a couple
minutes talking about the mens rea of this because, I
understood how you are using negligence, but it concerns me
just a little bit that we create a level that makes me a little
uneasy.
Mr. Lawrence. I appreciate the question, Congressman. You
should always be careful asking a criminal law scholar to talk
about mens rea because we could spend the rest of the day on
that. I will be brief, but I think it is an important question.
In my view, what makes civil rights crimes different from
other crimes is that you can think of them as two tier crimes.
There is an aspect of the crime which would be criminal if any
private person were engaged in it. In the case of police
brutality, let's say, the first-tier crime would be that of
assault. In the case of suborning perjury in putting the case
together for a prosecutor, it would be any other kind of
subornation of perjury. What makes it a civil rights crime and
creates Federal jurisdiction and also creates the extra
penalties that go with a civil rights crime then is the
additional element of being done under color of law.
My suggestion is that all of the protections that mens rea
properly gives to a case in terms of restricting punishment to
people who are consciously, willfully, knowingly violating the
law should apply to the first tier. Where I would not apply
that is in the second tier, and that is precisely where the
problems have come. So I think in many ways you can get the
best of both worlds by viewing them as two tier crimes.
Mr. LaTourette. I thank you very much.
Mr. Chairman, I yield back.
Mr. Shays [presiding]. I thank the gentleman. It is my turn
to ask some questions. I would like to say that eventually, Mr.
Duke, I am going to get to your eight recommendations, or
whatever number they were, go through them and ask each of our
witnesses what they think, and then see what we would add to
it.
But I would like to first start with Mr. McGuigan. Mr.
McGuigan, my recollection during the time that you worked for
the State and I was a State legislator and the interaction we
had, your job when you were on the Crime Task Force was to
validate whether these new gaming facilities that were being
set up, the dog tracks and the Jai Alai frontons, that they
were free of organized crime. Is that correct?
Mr. McGuigan. That was the mandate given to me by Governor
Grasso after they had already been cleared to open. But I
opened an organized crime investigation based on a parallel
case. In other words, the Task Force received the mandate after
it had already uncovered organized crime connections.
Mr. Shays. So, bottom line, these facilities and the owners
were allowed to move forward. You had reason to believe that
they were connected with organized crime. And, obviously, we in
the State of Connecticut wanted to be protected from a gaming
facility connected to organized crime.
Mr. McGuigan. We had a public hearing on it. And the
finding of the commission was they were connected to Buster
Ardito, who was a capo in the Genovese crime family. They had
meetings with him and Tony Provenzano, who was a capo in the
DiCalvacanti crime family in New Jersey. So we had meetings
with organized crime figures, including conversations with
organized crime figures in Bridgeport, and they revoked the
license.
Mr. Shays. It was clear to you that the gaming facilities
were very much connected with organized crime and you were in
the process of looking at each one of these facilities,
correct?
Mr. McGuigan. Bridgeport was and we closed it before it
opened. It was ready to open in a week and a half. There were
not that many people in Connecticut who were dancing at the
fact that their grand opening seemed to disappear. There were
not kudos, if you want to know, for what happened.
Mr. Shays. How did you determine that there was organized
crime involved in the Bridgeport----
Mr. McGuigan. I was doing an ancillary case in Bridgeport
and someone mentioned Kasue Street and I said let's followup on
the lead. I did a couple of interviews and then said something
is wrong. We demanded to see their books. They had loans from
Central States Teamsters Pension Fund. I decided to fly out
there to see what it was all about. I then went down to New
York and met with city of New York and OCTA force people and
convinced them that we were on a legitimate investigation, and
they gave me surveillance reports with Ardito and Provenzano.
Mr. Shays. Would you be working with the FBI out of New
York or out of Boston?
Mr. McGuigan. We had received nothing from the FBI. I did
not initiate. They were done by Mort Dinistein. I had never
received anything from the FBI.
Mr. Shays. Now why did you go down to Fort Lauderdale?
Mr. McGuigan. Because I suspected the gentleman.
Mr. Shays. And who was that you suspected?
Mr. McGuigan. It was just a hunch.
Mr. Shays. OK. You went down there. And what did you find?
Mr. McGuigan. I found that he told me--he had to have his
books ready and that when I got there----
Mr. Shays. Got where, in New York or Fort Lauderdale?
Mr. McGuigan. Fort Lauderdale. I went to Fort Lauderdale
and he had no books. And when I analyzed his books, I realized
that he had $250,000 in cash collections on April 4th and he
had a dispersement of the money with nothing to indicate to
whom the money had gone. Which convinced me that all was not
right in the Land of Oz.
Mr. Shays. Right. And did you see him with any organized
crime figures?
Mr. McGuigan. Well, I actually went to a place called the
Gold Coast, which was Meyer Lansky's hang-out, because I heard
from a Florida detective that he was associated with him. I met
him there with two organized crime figures, I believe it was
Tuna Boy Arcardo out of Chicago and Johnny Roselli. He was
having dinner with them and was somewhat surprised to see me
drop in for dinner.
Mr. Shays. I do not think I would have wanted to fly back
with you from Fort Lauderdale back to New York.
Mr. McGuigan. That was a hunch. It worked out and we closed
them down. We had public hearings, actually we were on
television all day in the State, and we closed them down.
Mr. Shays. Now this is a little off the picture but I would
like it just for the public record. If you have someone who
owns the facilities involved in organized crime, why do we make
an assumption that when they transfer the license they are
going to transfer it to someone who is not involved in
organized crime?
Mr. McGuigan. You should not make the assumption. You
should investigate equally, if not triply so, more diligently,
because it is highly unlikely that they just left the
connection. This was not a warm political environment. They
were planning to spend the revenue from opening these
facilities and the facilities were not opening.
Mr. Shays. OK. Courtesy of you. We had both Mr. and Mrs.
Salvati here a number of months ago at which time they told
their unbelievable story. And we also had a person who sat in
the front row two seats over named Paul Rico. And I tried to
listen and watch him at the same time to see how he would
react. And when he took the stand, and this time he did not
take the fifth, he showed no regret or concern. Now I made a
comment to someone that having listened to it he clearly knows
now that Mr. Salvati was innocent and he showed no remorse at
all, almost contempt that we would even suggest that he should
show remorse.
How often did you interact with Mr. Rico, and what kinds of
conversations would you have had with him?
Mr. McGuigan. I only met him probably three times.
Mr. Shays. What was his position at the time?
Mr. McGuigan. He was the Director of Security for World Jai
Alai. I presume his mandated function was to keep organized
crime out.
Mr. Shays. So he had retired from the FBI?
Mr. McGuigan. Retired FBI, Boston Organized Crime Strike
Force, Winter Hill Gang investigator, moved to Florida, and
then became the Director of Security at World Jai Alai. I
presume part of his duties were to ensure that organized crime
was kept out.
Mr. Shays. So you obviously began to have some suspicion
about him when he started to work for the Jai Alai fronton?
Mr. McGuigan. I had none. I had no derogatory information
on Mr. Callahan and had no reason to believe that Mr. Rico was
not as he was represented to me, a prominent organized crime
investigator in Boston. Why would I doubt his word at all?
Mr. Shays. OK. But when did you start to have some
suspicions?
Mr. McGuigan. I only became suspicious of Callahan and
decided to follow him. Not any particular good reasons.
Mr. Shays. So once, as you testified earlier, you learned
from Boston law enforcement people that this man was clearly
involved in organized crime, it was obvious to anyone who----
Mr. McGuigan. That was by accident. I went to meet Tom
Dwyer, the head of the Suffolk County investigation project. We
had come up empty on Callahan and we had been in Boston on
March 1st and did not know who was at Clarks Turn of the
Century and I mentioned John Callahan, and he said he is
connected to the Winter Hill gang and I have got surveillances
on him. That was an accident.
Mr. Shays. So did you make the assumption that they were
doing their job and the FBI just was not aware of it, or did
you begin to suspect the FBI?
Mr. McGuigan. Well, I then learned that Brian McNeely was
the head of beverage concessions at World Jai Alai that John
Callahan was a known associate of Winter Hill Gang members John
Martorano, I believe Stevie Flemmi, Whitey Bulger, Howie
Winter, Ron Costello, Brian Halloran. He had a collection where
he was a known associate. So I was a little concerned as to how
he got to be president of the company when the person in charge
of the security is someone who worked on these people. It
seemed to me to be a confusing situation. I could not figure it
out. I guess he was not up to snuff with what was going on at
Boston.
Mr. Shays. I just want to be clear as to who ``he'' is.
``He'' is Rico?
Mr. McGuigan. Well, Mr. Rico was the head of security. I do
not know whether he----
Mr. Shays. I just want to know, when you were mentioning
``he'' you were referring to Mr. Rico? So now you begin to have
obvious suspicions about someone who worked for the FBI in the
past. So would you at this moment have said this guy was in the
FBI, it is kind of weird, strange, and you have suspicions
about him, do you then proceed to have suspicions about the
FBI? You had suspicions about Rico. Then I want you to just
tell me where did you go from there. When did you begin to
suspect that more FBI people were involved?
Mr. McGuigan. I realized that Mr. Rico had been given
information regarding a potential loan-sharking transaction in
January 1976. I sort of wondered why I did not have it. Since I
was trying to clear this guy for a parimutuel license, I
thought maybe we ought to have that. So I could not quite
understand that either. So I said, well, now if he knew that
information, why did he not show me that information and why
did nobody else tell me that information? And then when I was
going to have a hearing on Callahan--now Callahan resigned
because Rico, and I do not know how he learned that we were
doing an investigation--we were planning to ambush Callahan at
a hearing in Hartford where his organized crime connections
would come up unbeknownst to him and see what we could uncover.
Callahan resigned. And as a commission might put it, all was
not well in the Land of Oz, let's go on with the licensing.
Mr. Shays. What I want to know though is, I want to know
something that, you are telling me something that I need to
know and I am following you to this point, but what I want to
know is you are in charge of law enforcement for the State of
Connecticut----
Mr. McGuigan. At the time I was not. At that time I was the
chief prosecutor for the State Organized Crime Task Force.
Later on I became the chief prosecutor.
Mr. Shays. OK. But at that time you had a very important
statewide function dealing with organized crime and you are
suspecting a former FBI agent, clearly suspecting, you believe
somehow he is connected in protecting an organized crime
figure. Did you at that moment, listen to the question, did you
at that moment believe that other FBI agents were involved, or
just a former retiree?
Mr. McGuigan. I did not know the logic of how this
information was not acted on. We were suspicious as to why it
was not acted on.
Mr. Shays. So you began to be suspicious that other FBI
agents should have been--well it seems obvious to you, but I am
trying to develop a record here and so that is why I am going
through it like I am going through it. I want to understand. In
your mind, this was just staring everybody in the face and it
was so obvious to you that a former FBI agent is protecting an
organized crime figure that you began to, what, suspect the New
England branch of the FBI?
Mr. McGuigan. No. I would say that I began to suspect that
people were not working as hard as they should be in Miami
World Jai Alai. They seemed not to have been able to uncover
this and I was wondering what was going wrong. They were maybe
having a bad hair day, I don't know. I do not know what it was
but it was troubling. Troubling is a good word. I was troubled.
Mr. Shays. OK. I just want to make sure you are not
speaking like Alan Greenspan where there is more meaning to the
word troubled. That is why I need to make sure that you are
being----
Mr. McGuigan. I admire the comparison, Mr. Chairman.
Mr. Shays. But it is our job to make sure you speak not in
tongues. So I want to be clear. Did you feel you could go to
the head of the FBI in New England and say this is crazy, you
have a former FBI agent who is basically shielding an organized
crime figure and I want to know what you guys are doing about
it? Did you feel you could do that? And did you do it?
Mr. McGuigan. See, Callahan was gone from the company.
Callahan was gone from the company, at least what we were told,
and we had no jurisdiction. They sold the company to somebody
else. I was unaware that Callahan had approached the new buyer
so he actually was not out of the company. And Callahan's
partner became the president of the company. And I was assured
that he----
Mr. Shays. And that was Roger Wheeler?
Mr. McGuigan. It was Richard Donovan who I was assured was
a Boy Scout.
Mr. Shays. Of course, you knew that not to be the case.
Mr. McGuigan. Well, he is a Boy Scout. Just ask anybody in
law enforcement.
Mr. Shays. OK. So ultimately you do not license him,
correct?
Mr. McGuigan. He was licensed. I do not license anybody.
The Commission on Special Revenue decided to license Mr.
Donovan.
Mr. Shays. OK. And he lasted for how long?
Mr. McGuigan. He was licensed for I think 6 or 7 years.
Then Roger Wheeler bought the company in 1978.
Mr. Shays. OK. By then you are the chief State's attorney?
Mr. McGuigan. Well, probably just as he was buying I became
chief State's attorney.
Mr. Shays. OK. So we do not have anyone killed yet. None of
your witnesses are killed.
Mr. McGuigan. No. And we had a background investigation on
Wheeler, who assured my inspector, George Ryalls, that he was
safe because he had all these retired FBI agents in World Jai
Alai who were going to protect him from the mob and he did not
have any problems.
Mr. Shays. And by all, how many? One? Two? Three?
Mr. McGuigan. I could not give you a count. There is a
count somewhere, but there were a number of them.
Mr. Shays. So it was Rico and a number of others?
Mr. McGuigan. Yes. There were a number of retired agents
who were very experienced in this area.
Mr. Shays. But being candid and not like Alan Greenspan----
Mr. McGuigan. Oh, he told my inspector that he was safe.
Mr. Shays. But by then though you did not know if he was
safe or not?
Mr. McGuigan. The operation essentially was in Florida. If
anybody wanted to do this case, they could have done the case.
The operation was in Florida. We were doing a Jai Alai player
fixing case in three frontons. He was in Florida, he felt safe.
What am I to say? But we then began a skimming investigation
involving World Jai Alai and the other Jai Alai frontons.
Mr. Shays. Let me just say to the gentleman, I am going to
be yielding you time but I am going to go about 5 more minutes.
But Mr. Wheeler ends up killed, assassinated really, at a
golf course. They did not pick a dark alley or when he came out
of his house. They went to a public place and he got murdered.
Mr. McGuigan. Southern Hills. I understand they play the
PGA there and the U.S. Open. It is a very nice place. I have
not been there.
Mr. Shays. That is a pretty dramatic way to kill someone.
It was a high profile, it was probably sensational. What was
your reaction when you heard he was killed?
Mr. McGuigan. I figured they were sending him a message,
sending everybody else a message. That is what I figured. It
looked to me like they were whacking him. So, you know.
Mr. Shays. But he was not a witness for you or anything
else. But did you start to get interested in the Jai Alai----
Mr. McGuigan. I believe he called George Ryalls on the day
before he was killed or the day he was killed.
Mr. Shays. George who?
Mr. McGuigan. My inspector who had cleared his license. He
wanted to talk to him about how Jai Alai was running.
Mr. Shays. How what?
Mr. McGuigan. How it was running and what was going on.
Mr. Shays. OK. And by then are you back into thoroughly
investigating this fronton?
Mr. McGuigan. Well, again, we have limited jurisdiction in
Connecticut. So we assisted Tulsa and we certainly tried to
get----
Mr. Shays. Did it raise an interest in who was going to run
the new facility and did you start to begin to wonder more?
Mr. McGuigan. Absolutely. We found out that they were
planning to sell the fronton before Wheeler to one Jack B.
Cooper who was a known associate of Meyer Lansky and apparently
the security people had no problem with that. That might be
troubling, but what do I know? The next thing that happened is
that they sold the Hartford Jai Alai fronton, which meant that
they did not have to deal with me anymore.
Mr. Shays. OK. I am just trying to establish when you began
to have real questions about the FBI in Boston and when you
began to think that your witnesses were being killed before
your very eyes.
Mr. McGuigan. Well, you know, whether they are my
witnesses. I think that Brian Halloran was a witness. He was
not killed before my eyes, but he was killed before somebody's
eyes.
Mr. Shays. Was he someone that you were using as a witness?
Mr. McGuigan. I knew Brian Halloran because he was actually
the guy who was tried in Boston in 1974 by Tom Dwyer for
shooting an MTA guard. And Callahan was surveilled because he
was a defense witness. That was the first connection made to
the Winter Hill Gang and to Callahan. So I knew who Halloran
was because he had a rap sheet and he was a Winter Hill
operator. I did not know he had gone into a Federal safe house
and had fingered Callahan, Bulger, Flemmi, and John Martorano,
who was a fugitive in Florida, for the hit. I have heard that
he fingered other people. I do not know. We heard that from an
informant, not from them because they never told us.
Mr. Shays. Now Callahan was someone who was also killed
eventually, correct?
Mr. McGuigan. Halloran was killed in May, and Callahan was
killed in August. Callahan was the last link to the case, at
least the last what we call non-mob link.
Mr. Shays. OK. Now you are referring to a case. What is
that case?
Mr. McGuigan. Pardon?
Mr. Shays. What was the case? You said the last one linked
to the case.
Mr. McGuigan. Well, the Wheeler case. Halloran tied to the
Wheeler case. Halloran is dead. He implicated Callahan in the
conspiracy. OK? Callahan was the only non-mob guy implicated in
the conspiracy. So if you were picking what is going to happen,
you would say the next thing they are going to do is they are
going to--I do not want to use the term but I will use it
because it is easy--they are going to whack Callahan, that is
what is going to happen.
Mr. Shays. Where did they kill him, and where were you?
Mr. McGuigan. They killed him on August 2. I landed in
Florida on August 3. Our mission was that we would try to find
Callahan and interview him.
Mr. Shays. So the day before you were to fly there he was
killed.
Mr. McGuigan. He was found in a trunk in Miami Airport.
Mr. Shays. Where you landed.
Mr. McGuigan. We landed in Miami Airport. They put him in a
trunk. They shot him in Fort Lauderdale and brought him over to
Miami.
Mr. Shays. Before giving the floor to Mr. Delahunt, I need
to be clear, and I want to say the record right now is not
clear, as to when you began to be uneasy about the New England
FBI.
Mr. McGuigan. Well, uneasy? I will tell you, when we heard
from an informant----
Mr. Shays. Let me ask you the question this way.
Mr. McGuigan. When we heard from an informant that Halloran
had been----
Mr. Shays. Let me ask you the question this way. Did you
trust the FBI in a way that you could give them information and
share information and did you feel they would keep the
information confidential, and did you feel they would cooperate
with you? If the answer is no, when did you begin to feel no
was the answer?
Mr. McGuigan. Well, I want to say this. I deal with the FBI
in Connecticut on a constant basis. The agents who I deal
with--I have total confidence in them. I have had cooperating
witnesses in numerous cases where they have treated these
people with nothing but respect and conducted themselves in a
totally honorable manner. So when I am talking about the FBI,
it is not true that this is a systemic problem. I deal with
these people every day and I consider them close friends and
honorable people who do the right thing above all else. But,
talking about this case and the people involved in this case, I
would not give them any information.
Mr. Shays. Would you have called the Boston FBI and given
them any information?
Mr. McGuigan. For what?
Mr. Shays. Ask their cooperation.
Mr. McGuigan. Mr. Halloran called the Boston FBI.
Mr. Shays. Yes?
Mr. McGuigan. Well he ended up dead. That is, you know, I
am not calling.
Mr. Shays. And you think there is a connection? I just want
the record to show that.
Mr. McGuigan. Well, he did. He called the FBI, he ended up
in a safe house, and the next thing you know he ended up on a
street gunned down. I do not know what happened. Maybe they can
figure out what happened.
Mr. Shays. OK. I am going to ask one last question. I am
sorry, Mr. Delahunt.
Mr. McGuigan. Somehow they must have found out about him.
Mr. Shays. Mr. Delahunt.
Mr. Delahunt. Let me just go for a few more minutes. Let me
see if I can rephrase. I think what Mr. Shays is looking for is
some context. Were you surprised when you initiated your
efforts in terms of the licensing investigation that you heard
nothing from the FBI but at some point in time heard from the
Suffolk County District Attorney's Office that there was a
problem with Callahan?
Mr. McGuigan. Absolutely. This was shocking.
Mr. Delahunt. But this was the first indication that maybe,
just maybe some folks in the Boston office of the FBI were not
being fully forthcoming?
Mr. McGuigan. Yes. I attributed it at the time to not being
fully forthcoming or perhaps not reading their reports.
Mr. Delahunt. Right. It was an oversight.
Mr. McGuigan. When I found out that they had handed over
reports--I do not know who handed them over to the retired
agent--but reports out of their office were handed over to a
retired agent that I did not get, that got a little more than
they just did read them then.
Mr. Delahunt. You were annoyed at that point?
Mr. McGuigan. That is annoying. That is annoying.
Mr. Delahunt. That was annoying.
Mr. McGuigan. Yes. You begin to think that maybe they are
not really on your team.
Mr. Delahunt. You get a feel.
Mr. McGuigan. Yes.
Mr. Delahunt. But then after those reports ended up--
presumably the retired FBI agent was Mr. Rico?
Mr. McGuigan. I believe that is so, yes.
Mr. Delahunt. Then you went from annoyed presumably to
either really surprised or disturbed when in the course of your
investigation as to whether a license should issue or not
Callahan resigns.
Mr. McGuigan. They tanked our investigation.
Mr. Delahunt. Did you smell something at that point in
time?
Mr. McGuigan. Well, I realized that our investigation had
been tanked. Who tanked it? I do not know.
Mr. Delahunt. You do not know who tanked it.
Mr. McGuigan. I do not know.
Mr. Delahunt. But it did not pass the smell test, so to
speak?
Mr. McGuigan. No. It was disturbing. It did not look like
everybody was playing on the same team. I do not know.
Mr. Delahunt. OK. And then later on, after the license is
issued to fronton, you develop information that someone is
skimming.
Mr. McGuigan. Actually, Ted Driscol originally developed
that and I started to look at it.
Mr. Delahunt. So then as a result of the efforts of an
investigative reporter from the Hartford Courant, Mr. Driscol,
you, in your role as State's attorney in charge of organized
crime or State's attorney period, say, hey, I better take a
look at this. And that is when you run across Callahan again.
Mr. McGuigan. Callahan, player fixing, which came into
that. We moved forward on player fixing for quite a while and
then started to wonder if they were fixing the games, and if
they were fixing them in Connecticut, were they fixing them
everywhere?
Mr. Delahunt. Right. But the time that had lapsed from when
the license had issued to when you initiated your skimming
investigation was what, 6 months, 2 years, 4 years?
Mr. McGuigan. Probably about 3 years. It took about 4
years.
Mr. Delahunt. It took about 3 to 4 years.
Mr. McGuigan. Yes.
Mr. Delahunt. Let me ask this. Were you surprised that as a
result of your investigation and your desire to interview Mr.
Callahan, and your conversation I guess a day or two prior to
that or at least a representative of your office with Mr.
Wheeler, it must have been profoundly disturbing when you go to
Miami and hear that Mr. Callahan has been whacked out.
Mr. McGuigan. Yes. I was thinking that Miami was not the
town I wanted to be in.
Mr. Delahunt. Right. You did not want to establish deep
roots there.
Mr. McGuigan. Yes. The District Attorney that was with me
said let's hit the silk and go home.
Mr. Delahunt. But at that point in time, and again this is
pursuing what Mr. Shays was, did you really start to wonder
what was going on? Did the smell become more putrid at that
point in time?
Mr. McGuigan. Yes. I mean, it was troubling.
Mr. Delahunt. It was troubling.
Mr. McGuigan. It was troubling.
Mr. Delahunt. Were you surprised later on, and this is
recent, to learn that Mr. Flemmi, who was an informant for Mr.
Rico, had put the contract out on Mr. Wheeler and that contract
was executed, no pun intended, executed by Mr. Martorano? That
has surfaced as a result of a case involved----
Mr. McGuigan. I think Martorano pled to that, I am not
sure.
Mr. Delahunt. He did. Right.
Mr. McGuigan. I was not surprised at all because we were
told by some informant that is what Halloran said. Of course,
for some reason the Organized Crime Strike Force in Boston and
the FBI found Halloran's testimony to be incredible and they
found him not deserving to be in witness protection. And I must
say, to me, it is amazing Joe Barboza deserves to be in witness
protection and a guy who is fingering someone who murdered the
president of the Telex Corp.--a distinguished gentleman with no
criminal connections whatsoever, a wonderful family man, living
in Tulsa, a pillar of his community--is killed, and in a State
where he bought a gambling facility where there were all kinds
of allegations of skimming and player-fixing, in this case we
do not want to believe somebody who says I am a first-hand
witness. We kick him out of witness protection and he gets
whacked in south Boston. And Joe Barboza, well, let's set him
up in the Napa Valley.
Mr. Delahunt. And teach him how to be a cook.
Mr. McGuigan. Yes, teach him how to be a cook.
Mr. Delahunt. Right. Let me ask you this. The decision to
place an individual, if you know, Mr. McGuigan, in the Witness
Protection Program, let's be specific, to the best of your
knowledge in the instant case of Brian Halloran, what Federal
officials would be involved in making that decision?
Mr. McGuigan. I would think the FBI would be the principal
people. I do not know if the Strike Force prosecutor has any
input or not, I do not know.
Mr. Delahunt. OK. Do you know, if you do know, who the FBI
officials would have been at that point in time?
Mr. McGuigan. No, I do not know who they were. They did not
tell us they had him. They did not tell Tulsa, apparently, who
had a murder that they have got a first-hand witness.
Mr. Delahunt. Do you know who was the chief prosecutor at
that point in time?
Mr. McGuigan. For the Organized Crime Strike Force?
Mr. Delahunt. For the Organized Crime Strike Force.
Mr. McGuigan. I think it was Jeremiah O'Sullivan. I am not
really sure.
Mr. Delahunt. OK. That was an attorney by the name of
Jeremiah O'Sullivan who would have been the head of the
Organized Crime Strike Force.
Mr. McGuigan. Yes, I think it was.
Mr. Delahunt. What would be interesting I think, Mr.
Chairman, is to ask Mr. O'Sullivan what his understanding was
of the rejection of Mr. Halloran.
You mentioned Tulsa. Now you said that you proffered
whatever assistance that you had at your disposal to Tulsa.
Mr. McGuigan. Oh, absolutely. Absolutely.
Mr. Delahunt. Were they grateful for that?
Mr. McGuigan. I believe that my inspector, George Ryalls,
had an excellent relationship with Mr. Huff, who was struggling
mightily for many years. I do not think he ever gave up on this
case. He deserves a lot of credit because he never gave up on
this case. And all the doors were closed, or most of them were
closed.
Mr. Delahunt. Did you or your inspector ever hear from
anyone from Tulsa relative to the cooperation they were
receiving, or lack thereof, from the Boston office of the FBI?
Mr. McGuigan. I know that--but I really better not say what
George Ryalls told me because you are testing my memory. I do
not have notes or anything. George was friendly with Mr. Huff,
but Mr. Huff did not seem like, you best ask him, he did not
seem like they were exactly leaning over backward to give him
the information.
Mr. Delahunt. Like he really was not happy?
Mr. McGuigan. Yes. That was my impression from Mr. Ryalls.
Mr. Ryalls has passed away. He passed away about a year and a
half ago. But he certainly felt that when this started to
uncover and given Judge Wolf's hearings, he was a very happy
investigator because he had spent many years frustrated by what
happened.
Mr. Burton [presiding]. I want to yield to Mr. Shays, and
if you have more questions we will come back to you real
quickly. But I just wanted to ask one question. How far do you
think Congress should go with this investigation of FBI
complicity in putting innocent people in jail? We know about
Mr. Salvati, and we know about some other people that went to
jail with Mr. Salvati, we know about a case I believe in New
Jersey, and there is one I think in Rhode Island. How far do
you think Congress should go with this investigation? I am
asking all of you now.
Mr. McGuigan. I think it is important that the record be
clear as to what occurred if abuses are going to be ended and
we are going to have a change. I think the agency today is not
the agency it was 5 years ago. I think there are tremendous
changes. I know that people I work with in Connecticut for the
last 10 years, and I am a private defense attorney now, are
wonderful people. I have no doubts.
Mr. Burton. So you think the corruption level has decreased
dramatically in the last 5 years?
Mr. McGuigan. Yes. But apparently from everything I read in
Boston it was a long fight. In other words, when people, one of
the problems--I did corruption cases mostly when I was a
prosecutor, that is really what I did. Corruption cases, by
their very nature, when you involve people in one corrupt act
you own them forever. You own them. And you can get them to do
what you want again once they commit the first corrupt act.
That is why corruption has to be rooted out.
Mr. Burton. Mr. Shays.
Mr. Shays. I am not an attorney, so I do not always know
the answer to my question. I am going to ask the others of you
a question later. But Mr. McGuigan, I still have some questions
for you. The interesting thing about this relationship is that,
given you are a witness, I get to ask the questions. It is the
first time I have ever gotten to ask you so many questions, Mr.
McGuigan. But what I am having trouble reckoning with is how
you deal as a very powerful law enforcement official with
another law enforcement agency when someone like Mr. Salvati or
Mr. Garo does not have that same kind of clout.
In my simple mind, and I want you to tell me why my simple
mind just goes off the track here, if I was a U.S. attorney or
ran an organized crime task force and I began to see FBI agent
retirees that are working for organized crime in my State, not
thinking that the Connecticut people are, but I would have
wanted to go to the Director in Boston and say do you know what
the hell is going on? Your people retire and then they work for
organized crime. Now there is a reason you either did it or you
did not. And if you did, I want to know. And if you did not do
it, I want to know why because that will tell me a lot about
how you were thinking this through. So if you would respond to
that question.
Mr. McGuigan. I do not quite----
Mr. Shays. Do you want me to repeat the question?
Mr. McGuigan. I do not understand the question.
Mr. Shays. Let me repeat again because I want you to
understand.
Mr. McGuigan. No. I think I heard it, I just do not
understand.
Mr. Shays. No. I am going to repeat it again. And the
reason I am going to repeat it is it is not that difficult,
frankly, unless you are Alan Greenspan. What I am asking is you
began to believe correctly that the retired FBI agents were
working for organized crime. That is true. You believed that.
Mr. McGuigan. No. I did not say that. What I said is that
they were ignoring criminal connections or unexplainably not
finding criminal connections of employees, which was troubling.
Mr. Shays. Which was very troubling. That is an
understatement, troubling. It is alarming. It is outrageous. It
is all of those things.
Mr. McGuigan. Those are your terms. They were troubling to
me.
Mr. Shays. OK. And troubling to a point where you would
feel inclined to tell the Director in Boston or whatever his
title is that you have got a problem in Hartford and I have got
a concern? Or, troubling that--let's take the Callahan
circumstance. You basically had the FBI in Boston not sharing
with you information that everybody else seemed to know. Either
they were idiots or they were covering up. Those are your only
two logical conclusions. And so I am interested to know whether
you went to the FBI Director in Boston and said you have got a
cover-up here or you have got a bunch of idiots who do not know
what everybody else in Boston seems to know, that Callahan is
involved in organized crime. I want to know if you did that?
Mr. McGuigan. No. And I do not think it would have been of
any avail whatsoever.
Mr. Shays. Why?
Mr. McGuigan. Because it is just not the nature of the
agency. The agency offered no explanation to me, and I do not
need to compel one as to why they provided information to other
people and not to us. The agency was negative on our case. We
originally gave them information regarding organized crime
figures in Bridgeport Jai Alai. They seemed to have no interest
in that. And, quite frankly, they apparently did not think that
there was infiltration of organized crime into Jai Alai, or
they were not interested in it.
Mr. Shays. So I am going to conclude from that you
basically believed it would have been pointless.
Mr. McGuigan. It was pointless. And history has borne me
out on that. It was pointless.
Mr. Shays. Well, it was pointless for a different reason.
They were corrupt.
Mr. McGuigan. That is what I said, it was pointless.
Mr. Shays. That is how Alan Greenspan would have said it.
Ted Driscol was a reporter working for the Hartford Courant.
Are you aware of any efforts by any present or former FBI
agents to cast doubt on Driscol's reporting?
Mr. McGuigan. To what?
Mr. Shays. Ted Driscol was a reporter for the Hartford
Courant writing about some of these stories, a very fine
reporter. Are you aware of any efforts to cast doubt on
Driscol's reporting by any present FBI agent or any former FBI
agent?
Mr. McGuigan. I believe former FBI agents. But I think the
committee will need to develop that.
Mr. Shays. And who are the former FBI agents?
Mr. McGuigan. Our understanding is that some of the former
agents or one of the former agents may have said that Mr.
Driscol was a possible suspect in the Wheeler homicide--him
being an investigative reporter--rather than the people he was
associated with. I am sure that is who would have done it, an
investigative reporter.
Mr. Shays. OK. Mr. Chairman, may I just----
Mr. McGuigan. I do not know. I have never seen the report
that says that is true.
Mr. Shays. OK. Fair enough.
Gentlemen, you have all been very willing to listen to my
questions. Mr. McGuigan, did you have something else you wanted
to say?
Mr. McGuigan. Mr. Chairman, I have a 4:30 flight. I have a
meeting in Miami. May I be excused. I have been grilled by
Brother Delahunt, Congressman Delahunt, Congressman Shays, and
I would hope that the other members of the panel would
understand.
Mr. Burton. I think that we are about to wrap up.
Mr. Shays. I have about five more questions. But he is free
to go.
Mr. Burton. Do you have any more questions of Mr. McGuigan?
Mr. Delahunt. I have none other than be careful of that
Miami Airport, Mr. McGuigan.
Mr. Burton. Do you have any more questions of Mr. McGuigan?
Mr. Shays. Let me go quickly through these. Mr. Duke was
very helpful in providing a number of recommendations.
Mr. Burton. We will get you out of here in the next 5 or 10
minutes, is that all right? I will get you to the airport,
promise. Do not worry.
Mr. Shays. Mr. Duke, the first one was confine and
regulate--these are recommendations for reform. I just would
like yes or no or quick qualifications. The first one was
confine and regulate the bribery of witnesses. I think we are
all agreed on that, correct?
The second was criminalize the suppression of exculpatory
evidence. I think we have addressed that. But that has to be
dealt with, you all agree?
Mr. Garo. Yes.
Mr. Lawrence. Yes.
Mr. Shays. Mr. Lawrence, do you want to qualify anything?
Mr. Lawrence. No.
Mr. Shays. OK. The third one was extend the time
limitations on prosecutions. I think you all agree on that, is
that correct?
Mr. Garo. Agreed.
Mr. Shays. OK. Thank you. On four, reduce the harsh time
limits on collateral attacks. I am not quite sure what that
means. Mr. Duke, real quick?
Mr. Duke. The limitation is a prisoner cannot attack a
conviction after the time periods permitted under the Anti-
Terrorism Act have expired. And I suggested that you might want
to take a look at that and adjust those severe limitations.
Mr. Shays. Mr. McGuigan, do you agree with that? Do you
agree with that recommendation?
Mr. McGuigan. No response.
Mr. Shays. Your mind is somewhere else here. Mr. Garo.
Mr. Garo. I do not have enough information about that,
Congressman, so I really cannot answer that.
Mr. Shays. OK. Mr. Lawrence.
Mr. Lawrence. I really do not have an opinion on that,
Congressman.
Mr. Shays. Pardon me?
Mr. Lawrence. I do not have an opinion on that,
Congressman.
Mr. Shays. OK. Create an independent innocence review
commission?
Mr. Garo. I think that is an interesting proposal. And the
reason for that is, I agree with Mr. McGuigan, who is going to
prosecute the prosecutors if they should be subjected to
criminal prosecution?
Mr. Burton. OK. But I think what we will do is if there is
a commission, and we will be looking at that, if there is a
commission appointed, one of the things we will ask them to
make a possible recommendation on is how you prosecute
prosecutors who are corrupt.
And the last question?
Mr. Shays. Yes. Eliminate the absolute prosecutorial
immunity, is that what you are suggesting, Mr. Duke?
Mr. Duke. Yes. That is the civil immunity for tort actions
by victims of prosecutors. It is now absolute and I suggest
that it be changed to a qualified immunity.
Mr. Shays. Mr. Garo.
Mr. Garo. I think the Salvati case speaks reams of why that
should happen.
Mr. Shays. Mr. Lawrence.
Mr. Lawrence. I could support a movement to a qualified
immunity.
Mr. Shays. And then just this last question. Is there any
one issue that you would recommend on top of this list? Mr.
Lawrence.
Mr. Lawrence. I would not support an immediate change in
the immunity of the prosecutor--as a former prosecutor, I am
concerned; I think it really has to be thought through. There
would be a spate of new suits against prosecutors which we are
not going to be able to dispose on motion and which are going
to tie up huge amounts of time.
Mr. Burton. That is why we said that what we are thinking
about is possibly having some kind of a commission look into
all of this and make a recommendation. I am sure that would be
one of the things they would discuss.
Anything else, Mr. Shays?
Mr. Shays. No. I just wanted to make sure that there is not
one key issue that you would add to this list. Mr. Lawrence.
Mr. Lawrence. No, I do not think so, Congressman.
Mr. Shays. Mr. Garo.
Mr. Garo. No.
Mr. Shays. Mr. McGuigan.
Mr. McGuigan. No.
Mr. Shays. Mr. Duke. Thank you all very much. I thank the
tolerance of the committee.
Mr. Burton. Thank you, Mr. Shays. You have been very
patient, fellows, and I want to tell you you have really helped
us a great deal. Hopefully, we will get this thing resolved and
things will be better.
Do you need somebody to get you to the airport? Do you have
a way out there?
Mr. McGuigan. I will get a cab.
Mr. Burton. OK. You sure you are going to be all right?
Mr. McGuigan. I will be all right. Thank you.
Mr. Burton. All right. Thank you all very much.
Did you have any more questions?
Mr. Delahunt. Yes, but I can just make it a conversation.
There is no need----
Mr. Burton. Well, why don't we excuse Mr. McGuigan.
Mr. Delahunt. Yes, whoever has to go. Mr. McGuigan, good
luck and I hope to see you in Boston.
Mr. McGuigan. Thank you, Congressman. Nice seeing you. I
will see you in Boston.
Mr. Delahunt. Good to see you, Austin.
Mr. Burton. Do you have some more questions real quickly?
Mr. Delahunt. Yes. I think it was Mr. Duke who raised I
think, a problem that I do not know how to address. And that
is, when an informant is developed, what is an appropriate
bargain, if you will?
We need, we, meaning the Government, the prosecutor, need
on occasion informant information and sometimes informant
testimony. But, for example, in the case of Salvati, with
Barboza as a witness, this is the bargain, he puts four
innocent people in jail because of perjured testimony. His
second case is a case against an alleged ring leader or head of
organized crime in Boston by the name of Angiulo. He loses that
case with his testimony. In the third case three individuals
are convicted and, as the chairman indicated, one being the
head of organized crime in New England area. He gets 2\1/2\
years. Then he is relocated. Then the Federal Government
intervenes to secure a parole in a non-Federal case, a State
prosecution. It is as if there is a continuing obligation.
In the case that I referenced earlier in my own experience,
here I am a State prosecutor, I am investigating a murder case,
and the information that would have been critical to solving
that particular homicide was not disclosed to me because the
FBI informant was being protected because he was providing
information to the FBI on a ring that was receiving stolen
property.
There has to be some sort of balance, some sort of
consultation with law enforcement, not just the district
attorney's office necessarily, but with an agency, one that
probably already exists, about whether the informant should
receive what kind of a benefit. How do you go about the
measurement of an appropriate benefit?
You know, I always remember a major in the State Police
telling me that if all of the informants in Massachusetts,
informants of Federal, State, and local agencies, were
arrested, we would see a decline in the crime rate of
approximately 90 percent if we just went out and arrested our
own informants. I am beginning to believe that was understated.
But there has to be some, and I would ask for you to
reflect on, what is the mechanism to determine whether it is an
appropriate benefit to the people, whether it be the people of
a State, or the people of the United States, in terms of the
arrangements with an informant. I believe, and I would be
interested again in any observations or comments that you have,
we, and I mean all of law enforcement, tend to rely too heavily
on informants. They are not, in my judgment, as necessary to
the successful investigation and prosecution of those who would
commit crimes against society as we have concluded.
I think that could be a premise that has to be examined. We
can use immunity. We can use other investigative techniques.
When we sit down with these informants we can say, listen, you
are going to go to jail for 10 years rather than 15 years. Not
that we are going to put you out in Santa Rosa, not inform the
community there that you have killed 20-some-odd people, and
teach you how to be a cook.
What is the mechanism of how we achieve an appropriate,
ethical bargain when we do rely on the informants? Do any of
you have any ideas? And if you do not, I would ask that you
reflect on it.
Mr. Garo. Congressman, I am going to say something that I
do not think yet has been stated in all of our hearings and in
all our testimony and everything that has gone on for the past
year in the Salvati case and in the Deegan murder case. It is
my opinion from all of the evidence that I know, and I know a
lot more than has been brought out here, that Joe Barboza was
extorting the FBI on a regular basis. You heard Mr. McGuigan
say that once that you have committed an illegality, you have
got them for life. Joe Barboza was cunning enough to know that.
And in my opinion, he had them wrapped around his little
finger. He got what he wanted because they did not want him to
recant his testimony.
Second of all, is that I think that what the Deegan murder
case and your entire investigation that you worked so hard and
diligently on for over a year shows the following: That there
are no shortcuts to the truth. I believe that you will find out
if you were to investigate, like I have, that the FBI's
handling of investigations is to go get an informant or a rat,
do not go and have to do the laborious investigations that your
office had to conduct, that Mr. LaTourette's office had to
conduct, and what Mr. McGuigan's office had to conduct. Because
if we have informants, we cut down the time.
Third, that the maximum sentences, minimum/maximum
sentences that have been given, let's say, for drug offenses,
that has created a whole new world of rats and informants. And
in my opinion, it does the opposite of what it is supposed to
do. In other words, it makes people say I will say anything you
want so that I do not get a maximum/minimum penalty. And to try
to get the punishment to say that we are going to keep
increasing the punishment, all it is going to do, and I agree
with you, is it is just going to proliferate the fact of
informants getting more and more deals.
And finally, I do not care what anybody says, when you make
a deal with the devil, an informant mostly is, most of the time
they are devils. When you make that deal, it is etched in
stone. So that, you have a break on this one because you are
informing. If you break the law, you are going down. No second
chances. No protecting them from murders. No protecting them
from life imprisonments. You are going down. If they enforce
that type, Mr. Congressman, I think that we will have a better
system of enforcing the truth from informants.
Mr. Delahunt. Professor Duke.
Mr. Duke. Yes. I think, ironically, one of the problems of
our use of informants is that informants have more to offer in
the bargain if they want to help convict innocent people.
Because if you have got a case against somebody, you do not
need the informant. If you do not have a case, you need the
informant. That is an inherent problem in the use of
informants.
I think we should probably consider making the reward to
the informant proportionate to his own criminality. I said
earlier today I was not sure that I would want to prohibit
absolutely deals with Barbozas and Gravanos. But I am inclined
to think that probably I would. If you let somebody go who has
committed multiple dozens of murders, what kind of a message
are you sending to criminals? What you are saying to them is it
does not matter what crime you commit, the worst possible crime
imaginable, if we catch you, all you have to do is flip and
give us valuable testimony and you will get away with your
crime. That is the hole we have dug for ourselves.
I think if we had a corroboration requirement, one that had
real meat to it, real heft to it, we would make it less easy
for informants to fabricate cases in order to cut a favorable
deal because their testimony would not be that worthwhile.
But I agree with you, it is an enormously difficult
problem. I do not know of a more difficult problem in the
criminal justice system.
Mr. Delahunt. Mr. Lawrence.
Mr. Lawrence. Congressman, I think I would just add a small
cautionary note on this. I think when we talk about informants
that the watchword ought to be vigilance but not over-kill.
There is a proper use for informants in certain kinds of cases.
There are certain cases that arguably could not be made without
informants. So your suggestion that it be reconsidered is
certainly I think a productive idea. And the suggestions that
Professor Duke and Mr. Garo have made with respect to a
corroboration rule I think I would share, and certainly that
there ought to be no future-looking immunity. You know, Steven
Flemmi had this idea of a free pass on the crime train.
Immunity with respect to past deals is one thing; forward
looking is certainly outrageous.
That said, within the context of informants and plea
bargains as well, vigilance but not over-kill.
Mr. Delahunt. Can I have another question, Mr. Chairman?
Mr. Burton. Certainly.
Mr. Delahunt. I do not know if you have had a chance to
review the guidelines that were promulgated by the Department
of Justice in the initial aftermath of the Boston-Flemmi-Bulger
situation. And this goes to the issue of mechanisms to ensure
compliance, enforcement, if you will. There is a lot of good
concepts in terms of what ought to happen and how the issues
that we have been discussing now for a year ought to be
addressed. But nowhere in those guidelines is there a mechanism
to ensure compliance by prosecutors or by FBI or Federal
agents. None whatsoever.
I dare say that if we went back and examined the policies
that were in effect at the time, whether they were Justice
Department or FBI policies, they were simply ignored and there
was no compliance whatsoever and no consequences if you ignored
them.
Now the Office of Professional Responsibility is talked
about in the course of your testimony. Myself and the former
Chair of the Judiciary Committee, Henry Hyde, requested and the
GAO study, I think that you referred to, Professor Duke, was
the end product. You know, it gets so confusing even for those
of us who are experienced in the justice system as to whether
there is an Office of Professional Responsibility for the FBI,
is there an Office of Professional Responsibility for the DEA,
is there an Inspector General for the Department of Justice. To
understand the system you need a degree in engineering from
MIT. It just gets so convoluted.
To be perfectly honest with you, even though there has been
some efforts made in terms of enhancing the authority and
encouraging the Office of Professional Responsibility to
monitor conduct and to enforce the standards and practices and
polices of all of the Justice agencies, I do not think they
even come close. It appears to me it is a recipe for disaster
if we believe the answer is doing something with the Office of
Professional Responsibility.
It is my own sense, and I am just giving you my opinions
without a lot of reflection, but the problem is so profound
that we need radical surgery here. We have to come up with a
new mechanism. I do not know what it is. Your suggestion,
Professor Duke, about an Office of Independent Prosecutor, even
though it makes me a little nervous, but if it was only within
the agency itself and maybe if it reported only to the Attorney
General. I do not know the answer. But if you have any
suggestions, I would like to hear them. And, again, I ask for
your reflection and consideration. You can communicate with the
committee if you have any specific ideas.
Mr. Duke. Well, I just agree entirely with your perception
of the role of the Office of Professional Responsibility. It
seems to me, at least in my experience with them, that their
function is to paper over and insulate further these agencies
from criticism. And that is all they do as far as I can tell.
They create the appearance of independent review when, in fact,
it is anything but independent, and in most cases it is not
even review.
Mr. Burton. Any other comments, gentlemen?
I think that is one of the things that you and I and other
members ought to take a look at and try to come up with some,
maybe with some input from these gentlemen and others, come up
with some kind of a recommendation that we can turn into
legislation. But I am looking forward to working with you
because you know what the heck is going on.
Mr. Delahunt. Yes, sir.
Mr. Burton. Mr. Shays, anything else?
Mr. Shays. Nothing further.
Mr. Burton. Gentlemen, thank you very much for your
patience. We appreciate your being here.
We stand adjourned.
[Whereupon, at 2:10 p.m., the committee was adjourned, to
reconvene at the call of the Chair.]
[The prepared statement of Hon. Wm. Lacy Clay and
additional information submitted for the hearing record
follows:]
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