FBI liable for murder by informants

A federal judge found that the FBI’s mishandling of longtime informants James “Whitey” Bulger and Stephen “The Rifleman” Flemmi caused the 1984 murder of Quincy fisherman John McIntyre and ordered the government to pay more than $3 million to McIntyre’s mother and brother. US District Judge Reginald C. Lindsay, who presided over an 18-day bench trial in June, ruled that former FBI agent John J. Connolly Jr. warned Bulger and Flemmi that McIntyre was cooperating against them, knowing the tip would likely lead to McIntyre’s murder.

McIntyre, 32, was lured to a South Boston home, chained to a chair, grilled for hours, choked, and shot to death, according to Flemmi. His remains weren’t discovered until January 2000.

In a 110-page decision, Lindsay found that the FBI failed to properly supervise Connolly and failed to investigate numerous allegations that Bulger and Flemmi were involved in drug trafficking, murder, and other crimes over decades.

The judge ordered the government to pay $3 million to McIntyre’s mother for the conscious suffering he endured before his brutal slaying, $100,000 for the loss of her son’s company, and $1,876 for funeral and burial costs.

The court decision offers a unique look into the Massachusetts Wrongful Death statute and compensation laws in general. As the court noted, the purpose of the statute is to compensate survivors for the loss of the decedent’s life. It also allows recovery for the loss to the person entitled to recover of the services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent (otherwise known as “loss of consortium” damages). The court grappled with the difficulty in quantifying these consortium type damages:

Such damages, however, are notoriously difficult to quantify. Havinga v. Crowley Towing and Transp. Co., 24 F.3d 1480, 1484 (1st Cir. 1994). There is, after all, no scientific formula or measuring device that can be applied to place an exact dollar value on noneconomic damages . . . . Muniz v. Rovira, 373 F.3d 1, 8 (1st Cir. 2004). Nevertheless, the amount awarded must be the product of a process of rational appraisal and based upon the evidence adduced at trial. Ruiz v. González Caraballo, 929 F.2d 31, 35 (1st Cir. 1991).

The court also addressed compensation for the decedent’s conscious suffering, another element of recovery under the death statute. Here the court had to consider and quantify rather gruesome evidence about how McIntyre suffered in the time just before he died. The analysis provided by the court highlights the difficulties juries face daily in awarding damages for human suffering:

The evidence of both McIntyre’s consciousness and his suffering is ample. For a period of about one to two minutes, Bulger, an accomplished murderer and a pretty powerful person, as Flemmi put it, tried to strangle McIntyre. In the abstract, one to two minutes is not a long time. But consider the annoyance of some motorists at an overlong traffic light, when all they have to do is wait for a period of seconds. McIntyre was not simply waiting; he was being murdered. He was handcuffed, his body encircled with chains. The rope around his neck – the first instrument applied to the task of accomplishing the murder – undoubtedly caused extreme pain and constricted his breathing. Then there was the pain of the handcuffs, which, by that point, had bound him for five or six hours. Applying common sense and logic to the facts of record, I find that after the attempted strangulation began, McIntyre likely was in extreme pain throughout his body. It is reasonable to infer, and I do infer, that when McIntyre did not die right away, Bulger increased the pressure on the rope, thereby increasing the agony experienced by McIntyre. McIntyre vomited and audibly gasped for air, making gagging and gurgling sounds. And McIntyre suffered more than physical pain. If, as Flemmi testified, McIntyre suffered mental anguish even before any attempt was made to kill him, the anguish he experienced as the attempt began and progressed must have intensified dramatically. He was terrified; he knew his tormentors intended, and would likely succeed in accomplishing, his murder. He had been an informant, and he would pay the price typically paid by revealed informants. He knew that there would be no time for goodbyes to his loved ones or for putting his affairs in order; for he would not leave that basement alive. It is difficult to imagine a more distressing set of circumstances - physically and mentally - than those encountered by McIntyre during the minutes preceding his death in the basement of 799 East Third Street on November 30, 1984. It was, as Emily McIntyre said, torture. See Emily McIntyre June 16, 2006 Tr. at 79. I infer that, for McIntyre, the one to two minutes of physical and mental pain were an eternity. It is not surprising, therefore, that when Bulger offered him the opportunity of a swifter death by a gunshot to the head, McIntyre pleaded for that gruesome, but quick relief from his suffering. It is his “yes, please” that is the most certain evidence of his conscious suffering.

On this evidence, the court found that a reasonable award was $3 million.

To view the entire decision, click here.