US asks voiding of $3.1m award in slaying of Quincy fisherman

Argues that agent betrayed the FBI

Emily McIntyre held photos of her son John after testifying in Boston in the wrongful death lawsuit against the government. (JOSH REYNOLDS FOR THE BOSTON GLOBE/FILE 2006)

A Justice Department lawyer urged a federal appeals court yesterday to overturn a judgment awarding $3.1 million to the family of a Quincy fisherman who was allegedly killed by long-time FBI informants James "Whitey" Bulger and Stephen "The Rifleman" Flemmi, contending that the FBI should not be held liable for the actions of a rogue agent.

The government asserted that FBI agent John J. Connolly Jr. betrayed the FBI in 1984 when he warned Bulger and Flemmi that John McIntyre was cooperating against them, prompting the gangsters to kill him.

"He's a traitor to the FBI," Justice Department trial lawyer Thomas M. Bondy said during arguments before the US Court of Appeals for the First Circuit. "This guy crossed to the other side. He was a criminal who had a day job as an FBI agent."

Bondy asked that the judgment be set aside because Connolly, who allegedly pocketed more than $200,000 in bribes from Bulger and Flemmi while serving as their handler, was not acting within the scope of his job as a federal agent when he leaked information that resulted in McIntyre's slaying.

But Appeals Court Judge Kermit V. Lipez, a member of the three-judge panel, suggested the court has an obligation to look at the FBI's history of "turning a blind eye" to the criminal exploits of Bulger and Flemmi because they were valued informants against the Mafia.

New Hampshire lawyer William E. Christie, who represents the McIntyres, argued that the FBI was responsible for Connolly's actions because FBI supervisors knew he was suspected of leaking information to Bulger and Flemmi, but failed to investigate and instead rewarded him with promotions and bonuses.

"The nature of the relationship was one of mutual benefit," said Christie, accusing FBI supervisors of overlooking evidence of misconduct by Connolly and protecting Bulger and Flemmi from prosecution for years.

Connolly, who retired from the FBI in 1990, is serving a 10-year prison term for his 2002 conviction on federal racketeering charges for protecting Bulger and Flemmi from prosecution and warning them to flee just before their own racketeering indictment in 1995. Bulger, 78, who remains a fugitive, is charged with 19 homicides and is on the FBI's Ten Most Wanted list. Flemmi, who was arrested before he could flee, pleaded guilty to 10 murders and is serving a life sentence.

Connolly, 67, is also scheduled to stand trial in September in Miami on state charges that he helped orchestrate the 1982 killing of another man, Boston financier John B. Callahan, by warning Bulger and Flemmi that he was a potential witness against them.

The appeals court is expected to take at least several months to rule on the government's request to overturn the September 2006 decision in the McIntyre case, which marked the first ruling on a lawsuit brought against the government by victims of Bulger and Flemmi.

Eighteen months ago, US District Judge Reginald C. Lindsay found that the FBI's mishandling of Bulger and Flemmi caused McIntyre's slaying and ordered the government to pay $3.1 million to his mother and brother.

Flemmi, who is cooperating with the government, testified during the 18-day bench trial that he and Bulger killed McIntyre on Nov. 30, 1984, after Connolly warned them that McIntyre had implicated them in an unsuccessful plot to ship weapons to the Irish Republican Army aboard the Valhalla, a Gloucester trawler.

McIntyre, 32, was lured to a South Boston home, chained to a chair, interrogated for hours, choked, and then shot to death, Flemmi said. His remains were discovered in January 2000, along with those of two other victims, in an unmarked grave in Dorchester.

Lindsay rejected the government's contention that Connolly was a rogue agent, finding that Connolly's supervisors "up the chain of command" approved using Bulger and Flemmi as informants and failed to thoroughly investigate the gangsters, even though they were suspects in four killings prior to McIntyre's slaying.