a report, and I stand by that report.”
Significantly, the two primary witnesses, informant Jordan and detective Coleman, both declined to cooperate with OPR investigators after
Ferrara’s lawyer objected. The OPR
can force cooperation from DOJ employees, but it lacks subpoena power or other means to compel outsiders
to talk. Although OPR lawyers questioned Barone’s trial counsel and had
the testimony of Jordan and Coleman
from court proceedings, the office
ended up in large measure with the
government’s side of the story,
which included a cold
court record, case files
from the FBI and U.S. attorney’s office, and interviews with prosecutors.
By May 2007, Wolf still
had not seen the OPR report, and his patience was
wearing thin. He wrote
Gonzales on May 11, demanding details on the
OPR investigation or an
explanation of why the
department no longer intended to provide them.
Apparently that very day,
Margolis sent him a copy
of the final report, dated
Jan. 10, 2005—more than
two years before. Wolf
didn’t like what he read,
so he called in the state
bar disciplinary counsel.
“In my view, a mere secret written
reprimand by the United States attorney would not ordinarily be a sufficient sanction for the serious, repeated and consequential misconduct,” Wolf wrote in a June 2007 letter to Gonzales, explaining why he
reported the matter to the state.
“However, the failure of the Department of Justice to satisfy its own duty
of candor to the court in this litigation
of the Ferrara case after the OPR
made its previously undisclosed findings reinforces the conclusion that I
invoke the district court’s disciplinary process.”
As of this spring, the Massachusetts ethics case against Auerhahn
was with state disciplinary authori-
ties, where it sits.
“As bar counsel, the cases that
judges complain about are a lot of
times ridiculous,” says Daniel
Klubock, the state’s head disciplinary lawyer from 1980 to 1990. He
also saw things from the other side
when he served as a state trial judge.
“As a judge, in 13 years I only reported two cases, and I didn’t like the way
they were handled,” Klubock recalls.
Wolf is scarcely alone when it
comes to judicial dissatisfaction with
federal and state disciplinary agen-
cies. Besides the Ferrara and Barone
cases, he cites a half-
dozen others in which
judges in his district had
to declare mistrials, usual-
ly under Brady.
Wolf also expressed irri-
tation at the government’s
behavior in the prosecu-
tion of rogue FBI agent
John J. Connolly Jr., con-
victed of tipping off James
“Whitey” Bulger and
Stephen “the Rifleman”
Flemmi about the identity
of two witnesses against
them. Bulger was the lead-
er of Boston’s notorious
Winter Hill gang; Flemmi
was a reputed hit man.
Connolly also warned
Bulger that he was about
to be arrested. Bulger fled
and is still at large. Con-
nolly was fingered by Kevin Weeks,
a trusted Bulger associate who had
helped dispose of one of the dead
witnesses, John McIntyre.
Because of Connolly’s involvement with Bulger, McIntyre’s family
sued the government. In the wrongful death action, Justice Department
lawyers worked to discredit the very
witnesses it had used to convict
Connolly in the criminal case.
As the civil trial unfolded in 2006
before Wolf’s colleague, Judge Reginald C. Lindsay, Gonzales came to
Boston to visit Wolf in his capacity as
chief judge to assess the department’s
performance in Massachusetts. Wolf
had something else on his mind.
“I told the attorney general that
CONNOLLY (TOP), A FORMER
FBI AGENT, WAS FOUND
GUILTY OF TIPPING OFF
GANG LEADER JAMES BULGER
ABOUT THE IDENTITY OF
TWO WITNESSES AGAINST
HIM. ONE OF THE WITNESSES
TURNED UP MURDERED.