A Risk Worth Taking
Steven M. Gordon looks back on his case against the FBI on behalf of a Whitey Bulger victim
Published in 2019 New England Super Lawyers magazine
on October 16, 2019
Updated on October 24, 2019
In the early 2000s, when Steven M. Gordon was given the chance to take on a wrongful death suit on behalf of the family of John McIntyre, who’d been killed by Boston mobster James “Whitey” Bulger, he had to consider a few factors that don’t normally arise in his business litigation and white-collar defense practice.
“The McIntyre case was largely about the relationship between the FBI and Whitey Bulger that led to a number of murders for which we felt the government was legally responsible,” he says. At the time, Bulger was a fugitive on the FBI’s Ten Most Wanted List. “When you’re suing people who have engaged in murder, you ask yourself, ‘Does this pose any risk?’” he says. “If there was a risk, it was minimal, and it was worth taking.”
Bulger, the leader of the Winter Hill Gang, allegedly became an informant in the 1970s to help the FBI take down his rivals in the Italian mafia. In October 1984, McIntyre met with the FBI and told them about an IRA-involved drugs-and-guns deal from which Bulger stood to profit. The drugs were seized by the FBI that November. John Connolly, the FBI agent who handled Bulger, tipped him off that someone involved in the IRA deal was cooperating with law enforcement. After Bulger and his associate Stephen Flemmi used that information to identify McIntyre, they murdered him. McIntyre was missing for 15 years until another of Bulger’s associates led authorities to his body in an unmarked grave.
No court had ever found the FBI “responsible for murder,” Gordon says. Even so, focusing on Connolly’s actions, he decided to bring the case against the FBI on behalf of the McIntyre estate. McIntyre v. United States was filed in 2000.
One of the first major battlegrounds was the hundreds of thousands of government documents related to McIntyre’s death. “I remember the government in its misconduct trying to prevent us from introducing these files and records,” Gordon says. “We were forced to subpoena a government witness to say these are the records that the government provided.”
Then there was the stonewalling. “I remember a former FBI agent who, whenever you asked him a question, he just simply said, ‘I don’t recall,’” Gordon says. “I was walking out in the hallway and saw a lawyer yelling at his client, ‘Remember, Sergeant Schultz: I know nothing.’”
On cross-examination, Gordon was able to show that the FBI prioritized informants in the fight against the Italian mafia—and that Bulger and Flemmi were given protection so they could provide information to Connolly, even though, says Gordon, Bulger and Flemmi continued to engage in criminal conduct.
What sticks with Gordon about the experience is the contrast—the violence in the courtroom testimony played against the beauty of the courthouse, the peaceful Boston Harbor in the distance, and the harmony of a piano being played outside. “I remember Stephen Flemmi describing [McIntyre’s] death in vivid detail,” says Gordon. “Pulling out the teeth and pulling out our client’s tongue. And Bulger saying he won’t be doing any more talking.”
In the end, the district court found that the U.S. was responsible for the death of McIntyre and awarded his estate $3.1 million. The ruling was affirmed on appeal.
“The FBI was in spin control, saying this was just rogue FBI agents operating in Boston,” Gordon says. “We found that was not true; that actually Washington D.C. was put on notice about this issue. Judge Torruella described the government’s conduct as official uncontrolled wickedness. To address that and to seek redress from that, that’s the spirit of lawyering.”
Odds and Ends
- The 2015 film Black Mass, which depicts the death of John McIntyre, stars Johnny Depp as Whitey Bulger, and Brad Carter as McIntyre.
- Bulger evaded authorities until his arrest in June 2011. He was sentenced to two life terms plus five years on 31 charges—including 11 for murder. He was beaten to death by inmates in prison in October 2018.
- Robert Mueller served as director of the FBI during the McIntyre case. Gordon says he saw a memo that read, “Ask Bob Mueller, he knows everything.” “We thought that was pretty interesting in view of what Bob Mueller’s role has become in this country,” Gordon says.