Nearly five months after an appeals court reversed his murder conviction in Miami on a legal technicality, ex-Boston FBI agent John Connolly remains behind bars as prosecutors fight to keep him imprisoned.
At issue: Prosecutors immediately asked Miami’s Third District Court of Appeal to reconsider a May ruling in favor of Connolly, whose relationship with notorious Boston mobster James “Whitey” Bulger became the basis for the 2006 crime drama movie The Departed.
But so far, there’s been no word from the appeals court. Now, Connolly’s frustrated lawyers are asking the Florida Supreme Court to force the Miami appeals court to hurry up and rule — and free the 74-year-old former agent.
“Despite having prevailed on appeal, Mr. Connolly remains incarcerated,” Miami-Dade Assistant Public Defender Manuel Alvarez wrote in a court filing this month, “as this cause languishes, in rehearing limbo.”
The state, however, is in no hurry.
The Miami appeals court “knows this is a very serious case and is treating it that way, being very deliberate,” Miami-Dade State Attorney Katherine Fernandez Rundle said Tuesday. “A just result is far more important than a speedy decision.”
Connolly is currently housed at a state prison in Northern Florida. In 2008, Miami jurors convicted him of second-degree murder for the July 1982 slaying of former World Jai-Alai executive John Callahan. He was sentenced to 40 years in prison.
A star FBI agent in the 1970s and 1980s in Boston, his twisted relationship with the so-called Winter Hill gang became crime lore in New England.
Bulger, after 17 years on the lam, was recaptured in 2011 and is now doing life in prison for his years of crime.
A federal jury in Massachusetts had convicted Connolly in 2002 for his dealings with Bulger’s gang, mainly protecting them from prosecution and tipping them about informants in their ranks. He was sentenced to 10 years in federal prison in that case, a sentence already completed.
In the Miami case, prosecutors say Connolly told gang leaders Bulger and Stephen “The Rifleman” Flemmi that jai-alai executive Callahan might cooperate in the probe of an earlier mob murder. The mobsters dispatched notorious hitman John Martorano to shoot Callahan dead, leaving his corpse in a Cadillac trunk at Miami's airport.
During a riveting trial in Miami in 2008, Flemmi and a host of underworld figures testified against Connolly. That included Martorano — who has long since been released from prison.
Connolly had originally been charged with first-degree murder and conspiracy to commit first-degree murder, which carries no statute of limitations. But the Miami-Dade jury found him guilty only of a lesser charge: second-degree murder with a firearm.
Defense attorneys challenged the verdict, saying Connolly should be freed because the statute of limitations for second-degree murder, in 1982, was only four years.
Prosecutors argued that the use of a firearm during the crime was an “enhancement” that rendered it a felony punishable by up to life in prison — with no statute of limitations.
That applied, they said, because Connolly carried his service weapon while revealing the sensitive information that doomed Callahan during a meeting in New England several weeks before the fatal shooting.
But the Miami-Dade judge refused to toss Connolly’s conviction because the ex-agent’s lawyers waited too long to file their objection.
Miami’s Third District Court of Appeal seemingly agreed; in March 2011, a three-judge panel upheld the conviction in a decision with no written opinion. Connolly’s lawyer, Alvarez, asked the court to reconsider the decision.
But the case lingered for more than three years. It was only after Alvarez asked the Florida Supreme Court to force the Third DCA to make a decision on that request that the court finally issued an opinion.
For prosecutors in Miami and Boston — and victims of the Winter Hill gang — the May opinion was a stunner.
Unusually, two of the same three judges who had originally voted to uphold Connolly’s decision changed their minds. Judges Richard J. Suarez and Frank Shepherd now agreed with the defense, saying that prosecutors had indeed been mistaken in asking that the murder charge be upgraded to second-degree murder with a firearm.
“It is beyond question that Connolly’s service weapon was neither available for use nor was it used in the murder; it had absolutely no spatial or temporal relationship to the discrete crime,” the judges wrote.
And so, the judges ruled, Connolly should be freed because the statute of limitations for second-degree murder, without the firearm, had long since ran out.
But Judge Leslie Rothenberg, in a lengthy dissent, said that nothing was wrong with the “reclassification” — and that jurors heard plenty of evidence that Connolly, while armed with his own gun, was a key player in the events that led to Callahan’s fatal shooting.
“The jury’s verdict sufficiently supports the firearm reclassification of the second degree murder,” Rothenberg wrote, adding that the decision to reverse was a “grave error.”
In immediately appealing the May decision, prosecutors insisted that the jury’s verdict was legally sound. They asked the entire appeals court — all 10 judges, not just the three initially selected for the case — to reconsider the ruling.
But so far, the appeals court has not ruled.
Connolly’s lawyers insist that the court has no choice but to “finalize” the appeal and let him go home.
“No reasonable grounds exist to justify the continuation of the rehearing process in this case,” Alvarez wrote.