obert LaMonica was shot to death at MA Supreme Court Reinstates letter until 2001, after his mother’s Rabout 12:15 a.m. on May 30, 1980, in death and after Bulger had become a the parking lot of his Boston apartment. The Frederick Weichel’s Conviction fugitive from justice.” 7 parking lot was across the street from Faxon Park. At the time of the shooting, four By Hans Sherrer In January 2002 Weichel filed a motion young people were drinking in the park for a new trial primarily based on the where they had gone after attending a drive-in new evidence of Barrett’s written confessions movie, where they had also been drinking. There was no physical or forensic evidence to murdering LaMonica. The motion also in- linking Weichel to LaMonica’s murder. cluded new information corroborating Two of the four youths in the park claimed to Weichel’s alibi, namely that an FBI agent on have seen a man running at some distance The jury disregarded the lack of evidence, Bulger’s payroll saw Weichel at the lounge at from them (later estimated at 180’) immedi- Weichel’s alibi witnesses, the woman’s eye- the time of the murder, and that Bulger told ately after they heard four shots. One of the witness testimony, and the fact that the male another FBI agent that Weichel wasn’t in- four, a man, said that while the man was witnesse’s description didn’t resemble We- volved in the murder. 8 running he passed under a street light and ichel in any particular. Instead, they relied on looked in the direction of the park for about the male witness’ courtroom identification of Weichel’s trial judge had retired, so Superi- one second. Minutes after the shooting, when Weichel to convict him on August 20, 1981. or Court Judge Isaac Borenstein was as- police arrived on the scene, the witness de- signed to his case. scribed the man as 5’-9”, 175, with dark curly “Whitey” Bulger – hair, bushy eyebrows and thick sideburns. The Mobster Extraordinaire Borenstein ruled an evidentiary hearing was witness also told police that he had consumed warranted, during which Barrett’s mother four or five beers within the last several hours. For decades until the mid-1990s, James testified. Based on her testimony a friend of “Whitey” Bulger was a gangster involved in Barrett’s, Sherry Robb, was contacted for the The day after the shooting that witness was gambling, narcotics and weapons who first time for possible information she might shown an array of nine photographs and he “used fear, intimidation, coercion, threats, know about LaMonica’s murder. Robb, a selected the photo of Frederick Weichel as the and murder to hold the community of South social worker, had lived in South Boston in one closest to the man he saw running, de- Boston hostage.” 3 Before his trial began, the 1970s where Barrett had met her. In the scribing Weichel as “a pretty good likeness.” Weichel was visited five times by Bulger early 1980s when she was living in Califor- 1 Then after he had seen a close-up photograph and his right-hand man, Stephen (“The Ri- nia, Barrett stayed for a time with her and a of Weichel, the police took him out in a van fleman”) Flemmi. Bulger warned Weichel roommate. Robb testified at the hearing that that drove by where Weichel was standing on during those visits, “I do not want you to Barrett told her “that he wanted to kill him- the street: the witness said, “That’s the guy.” 2 bring up Tommy Barrett’s name ever.” 4 self because “someone was taking the rap for Bulger threatened to harm Weichel and his something that he had done.”” 9 He then told However, contrary to that witness’ positive family (his mother) if he didn’t heed his her Weichel “had been wrongly accused and ID, Weichel didn’t match the detailed de- warning. Weichel, and everyone in South that Barrett had in fact killed someone.” 10 scription he provided to police minutes after Boston, knew that a threat by Bulger could the shooting: Weichel weighed 155 pounds, be ignored only at one’s personnel peril. After the evidentiary hearing Borenstein not 175, he was 5’-7” not 5’-9”, he did not found that based on an expert’s handwriting have thick sideburns, he did not have curly In December 1994 Bulger was federally analysis Barrett had written the confession hair, and he did not have bushy eyebrows. indicted on 18 counts of murder (and other letter. He also ruled that Barrett’s 1982 charges). Bulger was tipped off about the letter was new evidence because Weichel A woman was the other person in the park sealed indictment by an FBI contact, so he could not have reasonably discovered the who said she saw the running man. On three was able to go underground before he could letter’s contents due to his legitimate fear separate occasions she was shown the same be arrested. Bulger disappeared and 12 for his and his mother’s life if he dared array of nine photos that had been shown to years later remains on the FBI’s list of Ten publicly implicate Barrett as LaMonica’s the male witness. She did not positively Most Wanted Fugitives – alongside Osama murderer. Borenstein likened Weichel’s sit- identify Weichel. bin Laden. The FBI is offering a $1 million uation to that of a battered woman who fails dollar reward for information leading di- to act out of fear of the consequences. Weichel was indicted solely on the basis of rectly to Bulger’s arrest, and there is no one the male witness’ identification. on the list with a larger FBI reward. 5 Borenstein also found that Robb’s testimony concerning Barrett’s verbal confession was During his August 1981 trial the woman Barrett’s written and verbal confessions new evidence, credible, and admissible witness was asked if the man she saw run- to murdering LaMonica “under the exception to the hearsay rule for ning was in the courtroom. She did not statements against penal interest.” The ex- identify Weichel. Instead, she identified a In 1982 Weichel’s mother lived in Boston ception has a requirement that when a person man sitting in the back of the crowded and received a letter with a March 19th Cali- makes incriminating admissions, “the state- courtroom. The man she identified was one fornia postmark from Barrett. In the letter ment, if offered to exculpate the accused, of the victim’s brothers. Barrett clearly and repeatedly stated he killed must be corroborated by circumstances the man Weichel had been convicted of mur- clearly indicating its trustworthiness.” 11 Af- A Boston restaurant owner supported dering and that Weichel was innocent. 6 ter considering factors such as that Barrett Weichel’s alibi and testified that Weichel When she told Weichel that she received a knew he was a suspect and he would have was in his restaurant until about midnight. letter from Barrett, he was mindful of expected authorities to eventually learn of Other witnesses testified he then went to a Bulger’s threats and stopped her before she his confession, Borenstein determined “the South Boston lounge and was in the lounge could tell him what was in the letter. Weichel totality of circumstances “clearly show that at the time of the shooting. “did not inquire or learn of the contents of the Weichel cont. on page 25
JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 24 ISSUE 32 - SPRING 2006 Weichel cont. from page 24 ed Weichel’s rationale for not previously dis- Having found reasons to reject consider- covering “the exculpatory content of Barrett’s ation of Barrett’s written and verbal confes- Barrett had little to gain and much to lose by confession letter because he feared, and had sions to murdering LaMonica, the Court confessing to the murder.”” 12 been threatened by, Bulger and had been in- concluded its decision with, “The order timidated by Bulger and Flemmi.”14 The Court allowing the defendant's motion for new On October 25, 2004, Borenstein issued his declared, “In essence, the judge … carved out trial is vacated. A new order shall enter ruling. He wrote in his decision’s conclud- a coercion or fear exception to the reasonable denying the motion.” 20 ing paragraphs: diligence requirement of newly discovered evidence. This was inappropriate.”15 Does the MA Supreme Court’s decision The case against [Weichel] was not make sense? one of overwhelming evidence of The Court explained, “Consistent with his guilt; it was an identification case in duty of reasonable diligence, the defendant Weichel’s motion for a new trial is unusual which only one of four eyewitnesses could have “uncovered” the content of Bar- because of the central role played by the long on the scene … was able to identify rett's confession letter and revealed the con- shadow “Whitey” Bulger has cast over his [Weichel], and with only seconds, late tent to his attorney, and he could have case for more than a quarter of a century. A at night, to make the observations. … sought protection for himself and his family casual observer might find merit in the Massa- Beyond that, however, the evidence of from the government. “A hard choice is not chusetts Supreme Court’s rejection of the pos- guilt was thin. A gun was found near- the same as no choice.” United States v. sibility that retaliation by Bulger and Flemmi by that was consistent with bullets that Martinez-Salazar, 528 U.S. 304, 315 (2000). was a legitimate reason for Weichel to have shot the victim but nothing linked the He should not be rewarded for making the avoided promptly learning of, and acting on defendant to that weapon. There was wrong choice with resulting impairment of the confession in Barrett’s letter, because “he no other evidence; no weapon, finger- the integrity of the jury’s verdict.” 16 could have sought protection for himself and prints, or vehicle identification con- his family from the government.” 21 necting the defendant to the crime. The Court continued, “In reaching his con- clusions, the judge made findings concern- However, the Court’s analysis about the Both Barrett’s written and oral confes- ing the ‘backdrop’ of South Boston and the timeliness of discovering the letter’s con- sions cast real doubt on the justice of past activities, past reputations, and current tents is flawed for two reasons. Weichel’s conviction, especially since status of both Bulger and Flemmi. … Subse- the conviction was not based on over- quent disclosures about the evils and wrong- First, a threat by Bulger was unusual in that whelming evidence of guilt. The ex- doings of Bulger and Flemmi are not legally not only did he personally partake in killing culpatory evidence contained in relevant. We are satisfied that the defendant people who crossed him, but so did the peo- Barrett’s letter to the defendant’s had it within his means to ascertain the ple around him, including Flemmi. They mother and in his confession to Robb content of the Barrett letter long before he were both perceived to be killers. To people were not available at trial. Since We- filed his current motion, and his deliberate living in Boston who knew of Bulger, such as ichel did not have the opportunity to failure to do so renders the information Weichel, a threat to kill a person who crossed present this exculpatory evidence to clearly not newly discovered.” 17 him could be considered a promise. Bulger the jury, he is entitled to that opportu- was indicted for 18 murders in 1994, but nity now, in order to receive a fair trail, The Court then ruled that Barrett’s confes- those were only the murders federal prosecu- and because the newly discovered evi- sion to Robb was not new evidence because tors thought they could prove he committed dence casts doubt on the conviction. Weichel was aware that she and Barrett – it doesn’t include dozens of possible mur- knew each other, yet he did not pursue ders that were legally unprovable. The court notes that either Barrett’s let- finding out if she had any exculpatory infor- ter or his statements to Robb, taken mation until Barrett’s mother testified dur- Second, Bulger able to engage in a veritable alone, are enough to merit a new trial in ing Weichel’s evidentiary hearing. reign of terror in South Boston for over 20 this case. All of the evidence together years because he was protected by state and provides particular strength to its weight. The Court also ruled Barrett’s confession to federal law enforcement authorities. Bulger’s Robb was inadmissible hearsay, stating, “The status as an FBI informant protected him for The court ORDERS that the defendant’s judge erred on the third criteria [assessing the many years from prosecution by federal pros- motion for a new trial is ALLOWED. 13 admissibility of statements “against penal ecutors. He was so ingratiated with law en- interest”] because Barrett’s statements were forcement that at one time he had at least six The Suffolk County District Attorney ap- not adequately corroborated.” 18 The Court’s FBI agents on his payroll. 22 Who tipped Bulg- pealed Borenstein’s ruling to the Massachu- rationalized his confession wasn’t reliable er off about his federal indictment in Decem- setts Supreme Court. because, “… Barrett’s character was, at best, ber 1994 so he could go underground before questionable. … Robb had observed Barrett being arrested? An FBI contact. How has Massachusetts Supreme Court drinking and suspected that he used drugs Bulger eluded capture for almost 12 years issues its Weichel decision. because of his “destructive” and “erratic” even though it is known he has traveled around behavior. Barrett also had been arrested (in the United States almost like a tourist with two Since Borenstein was not the trial judge, the the 1970’s) for armed robbery and for assault different girlfriends, even returning to South Court only deferred to his credibility deter- and battery by means of a dangerous weapon. Boston on several occasions? His law enforce- minations; the rest of the case’s record was The judge should have factored this evidence ment contacts, who continue to aid him. 23 open to their assessment. On May 22, 2006, into his assessment. Had he done so, he the Court issued its decision. would have had no choice (on this record) but Three months before the Court’s decision, The to question the reliability and trustworthiness Brothers Bulger: How They Terrorized and The Court first ruled that Barrett’s confession of any statements made by Barrett.” 19 Corrupted Boston for a Quarter Century letter was not new evidence. The Court reject- Weichel cont. on page 26
JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 25 ISSUE 32 - SPRING 2006 Weichel cont. from page 25 Weichel’s trial also powerfully supports the evidence of Weichel’s innocence the jury did veracity of Barrett’s subsequent confessions. not consider, and that neither Weichel nor the (Warner Books Feb. 2006) was published. prosecution had at the time of his trial, and Written by Boston Herald columnist Howie The decision also didn’t address a subtext which if it had been available, arguably would Carr, among other things the book documents issue supporting Weichel’s conviction as a have resulted in the prosecution’s dismissal of that Bulger kept his closest associates in line miscarriage of justice: Barrett’s written and the charges against Weichel. by their fear that if verbal confessions to murdering LaMonica, they crossed him the numerous alibi witnesses, and the identifi- Did the MA Supreme Court make they would be cation of a different man in the courtroom by a political decision? killed just as un- the female eyewitness explains the inconsis- hesitatingly as tency of Weichel’s courtroom identification When notified that Justice:Denied would be anyone else who by the one witness the jury relied on to con- publishing an article about his case in the crossed him – vict Weichel. The simplest and most likely Summer 2005 issue (Issue 29), Weichel ex- which was com- reason the courtroom identification of We- pressed guarded optimism the state Supreme mon knowledge in ichel by that male witness was inconsistent Court would affirm the order for a new trial. South Boston. It with his description given to police minutes He explained that political influences affected also documents after he saw the man running on the street, the Court’s interpretation and application of how deeply Bulg- and the other evidence in the case, is he did the law in its decisions, and that powerful er was protected not see Weichel at the crime scene. Since political forces didn’t want his conviction dis- by law enforce- 1981 much has been learned about factors that turbed. The Court’s May 22 decision shows he ment. can affect the accuracy of an eyewitness iden- had good reason for concern, and it also shows tification – and the circumstances under that Judge Borenstein was able to rise above So the information was publicly and readily which the people in the park saw the man (it political concerns to grant relief to Weichel, available to the justices of the Massachu- was late at night with only a street light, he who based on the evidence now available is setts Supreme Court at the time of their May was running parallel to them, they were about actually innocent of LaMonica’s murder. 2006 decision, that Weichel couldn’t have 180 feet from him, they were inebriated, etc.) safely “sought protection for himself and weren’t conducive to a reliable identification. Although it is not well known to people his family from the government,” 24 at least outside Massachusetts, “Whitey” Bulger’s until his mother died, because Bulger’s ten- Recent research at the University of Washing- younger brother, William, is one of the most tacles extended deeply into state and federal ton documents that even one alcoholic drink powerful and prominent politicians in the law enforcement agencies. within an hour can severely impair a person’s state. He was president of the State Senate awareness and ability to accurately recollect for 17 years (1978-1996), and was president The Court’s ruling that Barrett’s verbal con- obvious and significant details of an event of the University of Massachusetts for sev- fession was inadmissible hearsay because occurring under conditions of perfect lighting en years (1996-2003). Did William Bulger “the reliability and trustworthiness of any and zero stress. 25 Another study based on a use his influence to sway the state Supreme statements” he made was questionable due simulated crime scene found that a person Court to overturn Borenstin’s order for a to his history of committing violent crimes considered legally drunk (.08-.1%) is 1/3rd new trial? And if so, why? Or did someone and his history of drinking and illegal drug less likely than a sober person to make an else? And if so, why? use is inexplicable. Confessions in Massa- accurate identification of a thief they wit- chusetts (and across the country) by sus- nessed committing a crime under perfect con- What’s next? pects with a long record of violent crimes ditions (lighting, etc.) 26 This research has and a history of drug and alcohol use similar serious implications for the accuracy of eye- Weichel can now pursue a federal habeas to Barrett are not just deemed admissible, witness memory, and the testimony the jury petition, or possibly first pursue a challenge in but typically underpin a conviction. In some relied on to convict Weichel was by a witness state court of his identification by the lone of those cases the lone witness was a facially who admitted he had been heavily drinking eyewitness, based on new scientific research unreliable jailhouse informant with a violent for hours prior to the shooting. Application of that an intoxicated person cannot reliably pro- criminal history and personal history of ex- this and similar scientific research to the cir- vide eyewitness details. If his jury had known cessive alcohol and drug use similar to Bar- cumstances of Weichel’s identification may about the significantly reduced likelihood of rett – which wasn’t an issue with constitute new evidence. an accurate identification by an intoxicated determining Robb’s credibility. The Court’s person such as the male witness in Faxon Weichel decision may backfire on them if Even though the Court never questioned the Park, there is a reasonable likelihood they Massachusetts defendants confessing under veracity of Barrett’s confession in the letter, would have acquitted him. Cutting through far less reliable circumstances than Barrett, they asserted that since they rejected it as the semantic fog, the essence of Weichel’s rely on it to have their confession ruled as “new evidence,” there wasn’t “the chance that case is he has compelling evidence of his inadmissible hearsay. a miscarriage of justice occurred.” 27 Yet actual innocence that his jury didn’t consider. Barrett’s confession means Weichel is inno- The Court’s decision carefully avoids dis- cent. So the Court’s de facto rationale is that The U.S. Supreme Court’s decision in House cussing that Weichel’s argument for a new in determining whether “a miscarriage of jus- v. Bell, No. 04-8990 (U.S. 06/12/2006) was trial is fundamentally based on the premise tice occurred” in Weichel’s case, compelling issued three weeks after the Massachusetts that Barrett’s confessions not only support evidence of his actual innocence is trumped Supreme Court’s Weichel decision. It pro- Weichel’s actual innocence, but also pro- by the liberal prosecution favorable applica- vides particular support for Weichel for two vides law enforcement with professions of tion of procedural and evidentiary rules to reasons: Like Weichel, the state court consid- guilt by a person who was originally investi- exculpatory evidence his jury didn’t consider. ered House’s claims to be procedurally de- gated as involved in the murder. Bulger’s Contrary to the Court’s assertion, “the integri- faulted from consideration; and, Weichel has interventions on Barrett’s behalf before ty of the jury’s verdict” is not impaired by Weichel cont. on page 27
JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 26 ISSUE 32 - SPRING 2006 y daughter Lori Berenson has been Guilt By Association – Mwrongfully incarcerated in Perú since the night of Nov. 30, 1995, when she was The Political Jailing of Lori Berenson arrested on a public bus in Lima. She was twenty-six years old. By Mark L. Berenson What Was Lori Doing In Perú? in an interview with The Washington Post, keeper turned “My relationship with the other people ac- out to be an Lori became interested in Perú after reading cused was a social relationship, talking about MRTA member extensively about that country. Lori traveled things. Until I was in jail I finally figured out and the alleged to Perú in November 1994 and became further more or less what they are, which is much Bolivian pho- intrigued with the rich indigenous history, different than what I thought originally....” tographer Rosa Mita Calle, who Lori had met culture, and interesting political atmosphere. a few weeks earlier, was really Nancy Gil- In April 1992, Perú experienced a “self-coup” Soon after Lori arrived in Lima, a sprawling vonio, a Peruvian married to Nestor Cerpa, the and political upheaval as President Alberto city of almost seven million people, she and MRTA leader). Nancy was arrested on the Fujimori attempted to bring peace and order Pacifico Castrellón, a Panamanian artist she same bus as Lori. to the chaotic nation with strong leadership met while traveling to Perú, co-rented a house and repressive anti-terrorism laws. Lori trav- in the city’s La Molina district. It was a large, Military Tribunal Convicts eled throughout the country learning about four-story house, like a boarding house, and Lori of Treason the culture and meeting many poor Peruvians. had ample room for Castrellón to paint. Sev- eral weeks later, Lori and Pacífico sublet the In January 1996, a hooded military tribunal Relying on her hands-on experience with house’s fourth floor to a man who said he was (now deemed illegal in Perú) convicted poverty and the plight of the poor in Central an engineer named Tizoc Ruiz. After that, Lori, a U.S. citizen, of treason against the and South America, Lori was able to obtain Lori never went to the fourth floor. Ruiz fatherland of Peru as a leader of the MRTA. assignments from two U.S. publications, subsequently hired a live-in housekeeper. The tribunal then sentenced her to life in Modern Times and Third World Viewpoint, to prison while a hooded soldier held a gun to work as a free-lance journalist. She secured Lori moved out of the house in August 1995. her head. The military tribunal’s proceed- appropriate press credentials in Lima, Perú’s At the time of her arrest almost four months ings were arbitrary and did not observe any capital. At the time of her arrest Lori was later, she was living in an apartment across the of Lori’s due process protections. Lori was researching articles about the effects of pov- city in Lima’s San Borja district. The large La unable to defend herself against any accusa- erty on women in Perú. We are in possession Molina house, however, remained occupied tions, and she wasn’t informed of state- of some of the transcripts of her work, but the by Pacifico, the housekeeper and Ruiz – along ments people had made about her – possibly Peruvian anti-terrorist police seized most of with the 18 MRTA recruits brought in from under duress and threats of torture. it when they searched her apartment. the Peruvian jungles who were clandestinely residing in the rooms on the fourth floor and Negative Reaction to Lori’s Military Did Lori Know MRTA Members? training in preparation for an attack on the Conviction Leads to Civilian Trial Peruvian Congress. Lori now knows that some of the people she In December 1998, the United Nations High met during the months she was in Perú before After Lori’s arrest, she first learned that Cas- Commission on Human Rights stated Lori had her arrest were members of the rebel organi- trellón was in fact a long-time MRTA mem- been deprived of her liberty arbitrarily and the zation MRTA (Movimiento Revolucionario ber, and that the alleged engineer Ruiz to government of Perú must take all necessary Tupac Amaru). But before her arrest she did whom Lori was introduced on a social basis, steps to remedy her wrongful incarceration. not know their real names or that they were was really Miguel Rincón, a high-ranking involved in MRTA activities. As Lori stated MRTA leader. In addition, the hired house- Berenson cont. on page 28
Time will tell how the next chapter of 10 Id. at ¶46
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