THE WHITEY BULGER trial was supposed to be about the long arm of justice holding a bad guy accountable, after all these years. But last week, it showcased just the opposite: a bad guy walking free.
The prosecution’s star witness, Johnny Martorano, an admitted murderer of 20 people, spent only 12 years in prison. Because he decided to cooperate, the feds put roughly $6,000 into his prison bank account over those years. After his release, Uncle Sam gave him $20,000 in “start-up” funds, and let him keep some $200,000 worth of ill-gotten gains.
On the witness stand, Martorano looked like a frowning sack of potatoes as Henry Brennan, Bulger’s lawyer, questioned him.
“Your partner now is the federal government, isn’t it Mr. Martorano?”
That extraordinary moment pulled back the curtain on the everyday machinery of criminal justice, the part we rarely get to see. The dirty secret is how much of the system rests on evidence given by the guilty in exchange for a reduced punishment — or, in Martorano’s case, a reward. Those deals remain secret unless they go to trial. And since 95 percent of cases never do, the public never really knows how most justice is actually dispensed, according to Alexandra Natapoff, professor at Loyola Law School and author of “Snitching.”
“What we have is sort of a black market of guilt and information that runs underneath the transparent and accountable justice system,” Natapoff said.
The vast majority of cases end in a plea deal, so most crimes in America are resolved not by judges and juries, but by prosecutors who decide behind closed doors which party gets treated as innocent and which gets treated as guilty, based on who is willing to talk.
Don’t get me wrong. There is nothing inherently bad about turning little fish against big fish. Informants save time and money, and get convictions that wouldn’t have been possible otherwise. Forgiving the little guy is worth it, if that’s what’s required in order to bring down a bigger evil. But too often, the system doesn’t work like it should.
Sometimes it’s the big fish that tells on the little fish: Jorge Luis Sandoval, who ran a massive methamphetamine trafficking ring in San Francisco, ratted out his own foot soldiers. And sometimes the little fish gets stiffer punishment than the big fish: Stephanie George, caught with half a kilo of cocaine in her attic in Pensacola, Fla., was sentenced to life in prison because she had no information to trade. Her former boyfriend, the drug dealer who hid it there, knew a lot. He only got 15 years.
Sometimes people looking for leniency make up information out of whole cloth.
At least 68 death row inmates have been exonerated and released from prison after convictions based on the testimony of witnesses who had an incentive to lie, according to Rob Warden, director of Northwestern University’s Center on Wrongful Convictions.
“That’s almost half of all death row exonerations since the death penalty was restored,” he said. “Most of this testimony is ‘Hey, he confessed to me. I was in jail with him.’ ”
The concept of getting rewarded for blaming a crime on someone else is nothing new. In the 1950s, it was such a classic conundrum that two RAND corporation scientists invented a game now known as the “prisoners’ dilemma” in order to study strategic decision-making.
But the heavy reliance on informants is relatively recent. According to Ethan Brown, author of “Snitch,” the practice exploded in the 1980s, after the passage of tough drug laws that established severe mandatory minimum sentences, but offered dramatic reductions for cooperation.
Whitey, of course, is the classic cautionary tale of a snitch gone wrong. It took a particularly tenacious federal judge to uncover the fact that Whitey was an FBI informant, even as he committed murder and other crimes. The case sparked congressional hearings and new Justice Department regulations.
But last week, it was hard to see what had really changed. The government got in bed with Martorano so it could use him against Whitey. Is that so terribly different from using Whitey against the Mafia?