Court on the wrong side of the law
Tommy Donahue was beside himself.
“Are we ever going to get justice?’’ he asked.
Apparently not. Not from the FBI. Not from the US Justice Department. And now it appears, not from the courts.
Tommy Donahue’s father, Michael, was collateral damage in the FBI’s cynical embrace of the gangster known as Whitey Bulger. After the FBI tipped off Bulger, its informant, that a hoodlum named Brian Halloran was shopping him for a murder, Bulger set up an elaborate plan to murder Halloran.
Unfortunately for Michael Donahue, Bulger moved in for the kill one day in May 1982 just as Donahue was giving Halloran a ride home to Dorchester from a waterfront bar. The bullets that killed Halloran killed Michael Donahue, too, leaving Patricia Donahue a widow and Tommy and his brothers Michael and Shawn fatherless.
It would take a book to explain the tortured road the Donahues have walked, trying to get justice for their husband and father. Two federal judges ordered the Justice Department to settle with the family, saying the FBI was egregiously responsible for getting Michael Donahue killed. But the Justice Department went on to spend more in litigation than the $6 million federal judge William Young eventually awarded the family.
The government, shameless and unrepentant, dragged the Donahues through the mud for years. The government appealed and appealed and finally got lucky last winter when, by a 2-to-1 vote, the US Court of Appeals for the First Circuit ruled the Donahues filed their claim against their government too late. The two judges who ruled against the Donahues said - and I’m not making this up - that they should have read the papers a little more closely.
Yesterday, a very divided full First Circuit refused to hear the Donahues’ appeal. That means they don’t get the money, but, more importantly, they don’t get any justice. They have been slapped in the face, again, by their own government.
“It’s outrageous,’’ Tommy Donahue said.
And of course, he is right. And again it was Judge Juan Torruella, who dissented from last winter’s opinion, who rose to defend the Donahues and to accuse his colleagues on the bench of rewarding the most heinous government corruption by looking the other way.
Torruella noted that Bulger has been caught and will answer for his crimes.
“But unlike Bulger himself, thanks to the panel majority’s decision and the full court’s refusal to reverse it, Bulger’s most trusted associate - the Boston FBI office - has gotten away with murder,’’ Torruella wrote. “The moral of this outcome seems to be that crime does pay, at least for the government.’’
Torruella spoke of a big picture.
“Beyond its implications for the Donahue and Halloran families,’’ he wrote, “this case has thrust renewed attention on the FBI’s reliance on confidential criminal informants and the obvious ways in which this relationship can become too cozy for comfort.’’
Torruella couldn’t possibly have known this, but at approximately the same time his words were released, a motion in another case was filed across town in Suffolk Superior Court.
In his motion asking for a full hearing for his clients, Attorney Bob George pulled back yet another layer of skin on the new Whitey Bulger case: the FBI’s use of Mark Rossetti, a suspect in at least six murders, as an informant.
Citing a sealed affidavit filed by state prosecutors, George’s motion puts into the public domain what state and local police sources told me months ago: that in late December 2008 or January 2009, an FBI supervisory agent lied to the State Police when the Staties asked him whether Rossetti was working for the FBI.
That motion also asserts that State Police Sergeant Pasquale Russolillo had encountered Rossetti on the street in August 2009 and that Rossetti admitted he talked to the FBI and that the FBI “had done a favor for him in the past.’’ Rossetti insisted to Russolillo that the FBI didn’t pay him, the motion says.
George’s clients were charged in a gambling and loansharking conspiracy with Rossetti, and George is trying to get his clients off by arguing that state authorities should have let state judges know they believed Rossetti was an informant when applying for court-authorized wiretaps of Rossetti.
So the FBI’s embrace of a murderous informant 29 years ago got Michael Donahue killed. Its more recent embrace of a suspected murderer named Mark Rossetti has imperiled the criminal charges against Rossetti and a host of other reputed criminals.
So, as Judge Torruella put it, this is not just about the injustice done to the Donahues. This is about the way the FBI does business with informants. This isn’t ancient history. This is now.
Torruella also suggested the Donahues should not give up.
“This case,’’ he said, “cries for redress, either by the Supreme Court or by a special bill of Congress.’’
Amen to that.