Miami appeals court hears case of ex-FBI agent tied to ‘Whitey’ Bulger

Ex-FBI agent John Connolly at his sentencing on Jan. 15, 2009.
Ex-FBI agent John Connolly at his sentencing on Jan. 15, 2009. Miami Herald

Notorious FBI agent John Connolly wore his service pistol at his side when he told gangsters in Boston about a possible snitch who later wound up murdered in Miami.

Is that fact alone enough to keep him legally behind bars on a conviction for murder with a firearm?

That’s the murky legal issue several of 10 Miami-Dade appeals judges struggled with Thursday as they revisited Connolly’s conviction in a case followed closely here and in New England.

Connolly’s defense lawyer, Manuel Alvarez, repeated his long-held contention: It’s beyond a stretch to think that the ex-agent’s service weapon played any role in the 1982 murder of John Callahan, shot by a mob hitman in Fort Lauderdale and dumped in Miami.

“My client had a gun three weeks before, 1,200 miles away — nowhere near Fort Lauderdale,” Alvarez told the entire panel of the Third District Court of Appeal.

“How close would he have to be?” Judge Leslie Rothenberg asked.

“He’d have to be there — and armed,” said Alvarez, a Miami-Dade Assistant Public Defender.

Prosecutors countered: A Miami-Dade jury heard testimony about Connolly’s gun and was properly instructed by the judge before convicting Connolly in 2008.

“John Connolly is not an innocent FBI agent sitting at his desk 1,000 miles away from the murder,” said Assistant State Attorney Joel Rosenblatt. “He was a primary mover.”

Connolly, 74, is still imprisoned on a 40-year prison sentence while awaiting the outcome of the legal fight. It’s quite a unique one.

The slaying was one of dozens committed by notorious mobster James “Whitey” Bulger and members of Boston’s Winter Hill gang. Connolly’s corrupted relationship with Bulger, his informant, became crime lore in New England and served loosely as the framework for the Oscar-winning movie The Departed.

A Boston federal jury convicted Connolly of racketeering in 2002 for his role with Bulger’s gang. He has long since completed a 10-year sentence in that case.

While in federal prison, Connolly was charged in Miami-Dade in 2005 with first-degree murder and conspiracy to commit first-degree murder, which carry no statute of limitations.

Prosecutors said Connolly — in phone calls and a meeting in Boston — tipped the mob that Callahan might cooperate in the probe of their earlier murder of World Jai-Alai owner Roger Wheeler. The agent “knew what he was doing each and every time he gave out information and somebody died,” the state said during the murder trial.

Hitman John Martorano flew to South Florida, shot Callahan dead and left his corpse in a Cadillac trunk at Miami's airport.

At Connolly’s 2008 trial, prosecutors also explained that jurors had the option of finding him guilty of second-degree murder — but with a firearm. That addition or “reclassification” was critical because without the firearm charge, the statute of limitation for second-degree murder would have expired in the mid-1980s. Jurors ultimately came back with that lesser verdict.

Last year, a panel of Third DCA judges, in a 2-1 decision, threw out Connolly’s case, saying the “reclassification” issue was flawed and the gun had no role in the murder.

But in November, in a legal rarity, the court decided that all 10 judges should be allowed to weigh in on Connolly’s conviction. Connolly has remained imprisoned.

On Thursday, Chief Judge Frank A. Shepherd — who along with Richard J. Suarez had voted to free Connolly— led the charge in pressing prosecutors on their legal theory.

He said he was “puzzled” by the weapon issue, and wondered if jurors even realized which gun was at question when they checked off “firearm” on the verdict form. On the bench, Shepherd squeezed a phantom trigger. “It doesn’t seem to say what firearm.”

The appeals judges mulled a host of hypothetical scenarios.

Judge Barbara Lagoa wondered if Connolly could have gotten convicted if he carried a Taser stun gun instead of a pistol. Shepherd asked if a farmer in Iowa, a hunting rifle at his side, would get the same conviction if he ordered someone to go to Miami to kill a man who “jilted” his daughter.

Judge Leslie Rothenberg, the only member of the original panel who had wanted Connolly’s conviction to stand, asked what would happen if a bank robbery mastermind was armed but stayed back three blocks away as his cohorts committed the crime.

“He could not have his offense ‘reclassified’?” she asked.

Alvarez smiled politely.

“I do know that in this case, a firearm in Boston three weeks before anyone was killed,” Alvarez replied, “cannot be used as a basis for ‘reclassification.’”

The hearing lasted one hour. The court has not set a timetable for when it will rule.