James “Whitey” Bulger’s lawyers argued Wednesday that they should be allowed to call his former associate, Patrick Nee, as a witness in his federal racketeering trial because he has been identified as Bulger’s accomplice in many murders, yet has never been charged with any of them.
“He’s an eyewitness to many of the core allegations in this case,” said Bulger’s lawyer, Hank Brennan, during a hearing after jurors had been excused for the day. “If the government doesn’t want to call an eyewitness, we will.”
But prosecutors accused the defense of “grandstanding” and said it is an effort to force Nee to take the stand and cite his Fifth Amendment right against self-incrimination before the jury. The defense has attacked the credibility of the government’s key witnesses—gangsters John Martorano, Kevin Weeks, and Stephen Flemmi—claiming they withheld information that could hurt Nee and other underworld associates while cooperating against Bulger.
Yet, Flemmi testified over the last several days that Nee was involved in at least 10 murders in the 1970s and 1980s—including several that occurred at the South Boston home of Nee’s brother—and helped bury some of the victims.
Assistant US Attorney Brian T. Kelly said the only way to force Nee to testify would be to grant him immunity from prosecution and prosecutors will not do that.
“We have no obligation to immunize witnesses who were involved with Mr. Bulger and we’re not going to do so,” Kelly said. He said it was too late, under the statute of limitations, to indict Nee on federal charges, but state authorities are not precluded from bringing murder charges.
US District Judge Denise J. Casper took the government’s request to bar the testimony of Nee, and other prospective defense witnesses, under advisement.
Flemmi, 79, who is serving a life sentence for 10 murders and has implicated Bulger in all of them, conceded during relentless cross-examination Wednesday that he has given inconsistent statements about the slayings during civil and criminal trials and in interviews with investigators.
“Why are your facts about what happened changing?” Brennan asked.
Flemmi acknowledged that sometimes he had difficulty remembering details of some murders, but said, “I was present on all those occasions.”
Bulger, 83, who was captured two years ago in Santa Monica, Calif., after 16 years on the run, is charged in a sweeping federal racketeering indictment with participating in 19 murders, extortion, money laundering, and gun possession.
His lawyers have spent much of the trial, however, trying to convince jurors that he was not an FBI informant, and that a corrupt agent fabricated a hefty file crediting him with providing information on his rivals in the Mafia and on members of his own South Boston crew from 1975 to 1990.
Testifying for the fifth day Wednesday, Flemmi remained adamant that he and Bulger were longtime informants. He said their handler, former FBI agent John J. Connolly Jr., leaked information to them about three other people who were cooperating with the FBI, prompting him and Bulger to kill them.
Flemmi told jurors that he he tried to get the 1995 racketeering indictment against him dismissed by claiming the FBI had authorized him and Bulger to commit crimes because they were informants. But Connolly broke his promise to testify on his behalf, and the judge refused to dismiss the case.
When asked if he disliked being called a “rat” while in prison, Flemmi quipped, “I don’t think Mr. Bulger likes it, either.”
Flemmi admitted that in 2000 he complained about conditions at the state prison in Walpole, where he was held while awaiting trial.
“I would have liked the conditions to be more humane,” said Flemmi, noting that he did not even have a stool in his tiny cell. “I mean I’m a human being. I think I would like to have a chair.”
He said the food was horrible, causing him to lose 35 pounds, and the telephone was broken so he could not call his lawyers. He agreed that his deteriorating health contributed to his decision to cooperate with authorities.
After he was indicted in a new racketeering case charging him with murders, Flemmi said he knew he could not beat it. He pleaded guilty in 2003 and agreed to cooperate with authorities under a deal that sent him to prison for life, but spared him the death penalty in Florida and Oklahoma, where he faced murder charges.
“However you look at it I was dead,” said Flemmi, adding that he did not want to put his family through a trial he could not win. “So I took the path of least resistance.”
Flemmi is now serving his sentence at an undisclosed federal prison.