Hearings aren't going the government's way at federal court in Boston. Increasingly, it seems as if the FBI, not five alleged mobsters, is on trial, as the court scrutinizes the agency's use of informants to bring down the New England Mafia.
The bizarre case unfolding in the paneled courtroom is casting light on the shadowed practice of employing informants to make a case. Moreover, in the latest twist, the case hints at the problems that can arise if the people working covertly for the government are committing crimes - perhaps with the knowledge or tacit consent of law-enforcement officers.
Federal district judge Mark Wolf is trying to get to the bottom of who worked for the FBI when - and whether the agency played by the rules in its effort to build a case against reputed organized-crime figures in the region. If he finds against the government, the current case against the five men could be thrown out of court - and dozens of previous convictions involving the use of informants could be challenged.
"The larger question here is what's the proper line between law-enforcement officials and criminals," says Daniel Monti, sociology professor at Boston University.
The line can be hard to define. The government has always had to conduct business with the very individuals it is trying to arrest, says Mr. Monti, author of "Wannabe," a book about gangs in suburbs and schools. The Boston case should prompt society to consider "how much latitude the courts and the public are formally going to give law-enforcement officials to deal with criminals," he says. "There is no easy answer."
ON Friday, Judge Wolf ordered the US Attorney's office to turn over by July 18 every scrap of information concerning informants from all agencies that participated in the investigation resulting in the arrests of reputed New England Mafia boss Francis (Cadillac Frank) Salemme and four codefendants.
All along, the government has resisted the judge's orders to divulge the names of its informants. Doing so, say current and former law-enforcement officials, would jeopardize the government's future ability to use informants to crack difficult cases.
"This could have a chilling effect on the future use of informants," says Peter Crooks, a university professor whose first career involved 24 years with the FBI, working in counterintelligence. Divulging the names of sources, whom the government has promised to protect, will surely affect others' decisions to help the government covertly in the future, he adds.
The judge wants the information to determine the admissibility of a key piece of evidence in the case now before his court: a wiretap of a 1989 mafia induction ceremony that led to the arrest of the five defendants. (Court authorization for the wiretap might have been denied if the FBI had revealed that its informants would be at the ceremony.)
Using informants is tricky, at best, and the choices are limited. The FBI either can target someone inside the criminal organization, preferably near the top, to become an informant, or it can plant someone. But the plant is usually at a much lower level, and it may take years for him to climb high enough in the organization to get useful information.
Either way, to rise in a criminal organization, the informant in all likelihood will commit crimes, Dr. Crooks says. The difficult part is managing the informant, whose agenda is separate from that of the law-enforcement officer. The FBI agent is in it for the information, and the informant for money, revenge, protection, or a combination of those, he says.
"There is a degree of cooperation, but not necessarily control," Crooks says.
This is the murky area Judge Wolf is exploring in the Salemme hearings. He wants to know the details of how government agents conducted themselves in their use of informants.
Over the past few weeks, the government has admitted reluctantly that several of those it targeted as criminals, including James "Whitey" Bulger, Stephen "The Rifleman" Flemmi, Angelo "Sonny" Mercurio, were government informants. Some provided information about the Mafia induction ceremony, in which four wiseguys were initiated, and others were at the ceremony.
In a dramatic development last week, one of the five defendants filed an affidavit asserting that the FBI knew of his involvement in criminal activity and approved of it so long as he didn't kill anyone.
He also said the FBI tipped off Mr. Bulger, who the FBI has now admitted was an informant, to his imminent arrest. Bulger fled and has not been apprehended.