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Can an employee’s participation in murder fall within the scope of employment for the purposes of establishing civil liability in a wrongful death suit against the employer? Can the employer be responsible for such conduct by its employee even when the employer is a government agency? Can the government agency be responsible for murder when its stated purpose is to investigate violations of federal criminal law? In September 2006, after a four-week trial in the U.S. district court in Boston, Judge Reginald Lindsay answered each of these questions in the affirmative, awarding the estate of John McIntyre $3.1 million in damages in a wrongful death action under the Federal Tort Claims Act (FTCA). McIntyre v. United States, 447 F. Supp. 2d 54 (D. Mass. 2006). In reaching this decision, Lindsay found that the Federal Bureau of Investigation (FBI), through the conduct of Special Agent John Connolly, disclosed the identity of McIntyre, a government informant, to two of Boston’s most violent and notorious criminals, James “Whitey” Bulger and Stephen “the Rifleman” Flemmi-and that as direct, proximate and foreseeable result of that disclosure, Bulger, Flemmi and their associate, Kevin Weeks, murdered McIntyre. The court also determined that Connolly disclosed the fact of McIntyre’s cooperation to Bulger and Flemmi because the information provided by McIntyre regarding Bulger and Flemmi’s criminal activities endangered the FBI’s longstanding relationship with the two, who were among the FBI’s most prized informants in the successful investigation and prosecution of La Cosa Nostra (LCN). Perhaps most striking, the court concluded that Connolly’s conduct leading to McIntyre’s murder was not an isolated, aberrant act by a rogue government employee, but part and parcel of the FBI’s decades-long practice of protecting Bulger and Flemmi as informants by shielding them from prosecution for crimes they had committed. Bulger and Flemmi were well known in the Boston area as leaders of the so-called Irish mafia from the mid-1970s to the mid-1990s, when Flemmi was arrested and Bulger, after being warned by Connolly, became a fugitive from justice. During the course of Flemmi’s criminal prosecution, Flemmi disclosed that he and Bulger were FBI informants and were offered protection by their FBI handlers and their supervisors in exchange for information against LCN figures, the FBI’s No. 1 investigative priority in the 1970s and 1980s. Although Flemmi’s disclosures were initially met with governmental denials, over time a criminal investigation revealed their truthfulness and, eventually, Flemmi’s FBI handler, Connolly, was convicted for obstruction of justice. McIntyre presented the first time a civil plaintiff obtained a verdict holding the FBI liable for the murder of one of Bulger and Flemmi’s victims. Under the FTCA, the estate had to prove that the FBI negligently disclosed the fact of McIntyre’s cooperation and that this negligent act was within the scope of employment. These issues were controlled by Massachusetts law. During discovery, the government produced more than 500,000 documents encompassing FBI policy and procedure manuals, informant and investigation files, the personal files of relevant FBI agents and the hundreds of interviews conducted by a task force investigating the FBI’s relationship with Bulger and Flemmi. Although, in some ways, trial counsel’s task was made easier by prior investigations, in many ways the extent of the relevant document population detailing 30 years of Bulger and Flemmi’s criminal acts and the FBI’s institutional wrongdoing made the task more daunting. Presenting a single murder in the wider mosaic of the FBI’s relationship with Bulger and Flemmi was fraught with potential pitfalls and false turns that had to be avoided in order to establish the core facts of the government’s culpability in the murder of John McIntyre. Short witness list Due to the long factual history, the trial could have involved dozens of fact witnesses. Anticipating that the government would call two FBI supervisors to deny institutional wrongdoing, the estate presented its case through only three fact witnesses: Flemmi, Weeks and former FBI supervisor Robert Fitzpatrick. With these witnesses and the order of their testimony determined, documents were chosen as trial exhibits that could establish the scope of Bulger and Flemmi’s criminal activity; FBI policy and procedure regarding handling informants; and the FBI’s willful failure to follow its own policies when it came to Bulger and Flemmi. This method narrowed more than 500,000 documents down to slightly more than 100 exhibits encompassing approximately 2,000 pages. Introduction of these materials would establish that the leak was within the scope of employment. At trial, Connolly’s leak of McIntyre’s identity to Bulger and Flemmi was established by the direct testimony of Flemmi and Weeks. Flemmi testified that in exchange for his agreement to provide the FBI with information about the criminal activities of LCN, Connolly and several FBI supervisors promised Flemmi protection from arrest and prosecution. Flemmi recounted 30 years of violent criminal activity and his role in 10 murders while serving as an FBI informant. Flemmi also testified that the FBI used its influence to remove him from indictments and tip him to potential investigations against him. He said that the FBI didn’t treat him like a criminal, but like an FBI agent. Flemmi testified that as part of this pattern and practice, Connolly disclosed the identity of three informants before McIntyre who were then murdered by Bulger and Flemmi. Finally, Flemmi explained the circumstances of Connolly’s disclosure that McIntyre was cooperating with the government. This testimony was buttressed by Weeks, who was informed by Bulger that he learned about McIntyre’s cooperation from Connolly. Flemmi and Weeks also established the grisly details of the murder. With the leak, murder and pattern of protection established through Flemmi, it was necessary to establish that this conduct was within an FBI agent’s scope of employment. Much of this evidence was admitted through the third fact witness, Fitzpatrick. Because the United States was the defendant, contemporaneous FBI documents were introduced as admissions by a party opponent. The challenge was selecting a witness who could explain key memos, procedural manuals and informant files. Fitzpatrick proved a successful choice because of his position as second in charge of the Boston FBI office, whose supervision covered Connolly; his tenure in that position covered the majority of the key acts in the case; and he claimed to have warned his superiors early on that Bulger and Flemmi needed to be shut down as informants, reportedly stating after his first meeting with the mobster that Bulger was a “live psychopath.” The benefit to the FBI Under Massachusetts law, to establish that Connolly was within the scope of employment, it was necessary to prove that the leaking of McIntyre’s name was an action motivated, at least in part, for the benefit of the FBI. Fitzpatrick testified that prosecution of LCN was the FBI’s No. 1 priority, mandated from FBI headquarters. Memos and documents corroborating this testimony were introduced into evidence through Fitzpatrick. Fitzpatrick also testified that informants were essential in prosecuting the FBI’s war on the Mafia. The FBI manual regarding handling of informants was admitted underscoring the importance of informants, the inherently dangerous task of utilizing violent criminals as informants and the requirement that all agents develop and operate informants. Through Fitzpatrick it was established that despite the carefully calibrated informant manuals requiring the closing of informants engaged in violent criminal activity, the FBI failed to follow its own policies and procedures regarding informants when it came to Bulger and Flemmi. Internal FBI documents contained real-time assessments that Bulger and Flemmi were prized informants and revealed the FBI’s willingness to ignore evidence that would have required the FBI to prosecute Bulger and Flemmi rather than keep them open as informants. Finally, Fitzpatrick testified that Connolly was widely regarded within the agency for his work with informants, including receiving multiple citations for his work from the director of the FBI. Fitzpatrick’s testimony and the key documents admitted during his examination established the core evidence that Connolly’s act of leaking McIntyre’s identity to Bulger and Flemmi was within the scope of employment because investigation of organized crime was the FBI’s No. 1 priority in the 1970s and 1980s; Bulger’s and Flemmi, as informants, played a critical role in the FBI’s war on the Italian mafia; Connolly, pursuant to FBI procedure, was responsible for “handling” his star informants; and leaking the fact of McIntyre’s cooperation (including its foreseeable risk that it could result in McIntyre’s murder) was intended to preserve Bulger and Flemmi as informants to the benefit of the FBI. The district’s court’s verdict was a great victory for the McIntyre family and for the city of Boston, which had suffered Bulger and Flemmi’s criminal empire for decades. As the evidence would establish, Bulger and Flemmi were able to establish their criminal empire with the protection of the FBI. As practitioners, the lesson to be learned from the trial is that nothing can replace understanding the essential elements that must be proven at trial and effectively winnowing the available evidence to prove those facts in an efficient and compelling fashion. William E. Christie is a partner at Shaheen & Gordon in Concord, N.H. He and his partner, Steven Gordon, tried the McIntyre case in June 2006. Charles Holoubek is a student at Franklin Pierce Law School in Concord, N.H., who assisted at trial.

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