MIAMI (AP) — A former FBI agent convicted in a decades-old South Florida slaying linked to Boston mobster James "Whitey" Bulger should be freed from prison because he was improperly found guilty and wrongly sentenced, his attorney told a Florida appeals court Thursday.
A three-judge panel of the 3rd District Court of Appeal agreed last year, tossing out John Connolly's second-degree murder conviction and 40-year prison sentence. State prosecutors persuaded the full 10-judge court to reconsider and oral arguments were held Thursday. A decision is likely weeks or months away and further appeals are possible.
The key issues are two guns and the fact that Connolly was 1,500 miles away in Massachusetts when a Bulger hit man, John Martorano, fatally shot World Jai-Alai President John Callahan in Fort Lauderdale in 1982. Prosecutors say Connolly provided Bulger and his cohorts with tips that Callahan was likely to implicate the gangsters in another slaying.
The jury that convicted Connolly in 2008 found that, as an FBI agent, he would have been carrying a firearm during these discussions. Although that gun was not used in the Callahan slaying, the jury's finding to "reclassify" the charge was enough to overcome a statute of limitations in place in 1982 that would have required Connolly's acquittal.
Connolly attorney Manuel Alvarez said the gun enhancement would only apply if Connolly's weapon was used and if he was present at the scene of the crime.
"You can't use a firearm he possessed three weeks before in Boston to reclassify him," Alvarez said. "The only weapon that was involved in this murder was John Martorano's gun."
Assistant State Attorney Joel Rosenblatt, however, said Connolly's meetings with Bulger and others were crucial in starting the chain of events that led to Callahan's killing. The FBI agent's possession of a weapon at those meetings, he said, was part of the same crime.
"That was the initial act that caused the death of the victim. It still makes him culpable for the crime," Rosenblatt said. "John Connolly is not an innocent FBI agent sitting at his desk 1,000 miles away from the murder."
Chief Judge Frank Shepherd, who was on the panel that previously voided Connolly's conviction, questioned how his possession of an FBI service weapon at various meetings with Bulger and his gang could be used against him for a killing that happened weeks later with a different gun fired by someone else.
"I'm puzzled, I guess," he said. "There is no crime for which Connolly can be prosecuted until there was a murder, right? With respect to Connolly's firearm, it was not part of the act. It was just there."
Judge Kevin Emas noted that the jury specifically concluded on its verdict form that Connolly was armed in the commission of the crime, which he said could be "a clear expression of a factual finding by the jury."
"It is a necessary fact for reclassification the jury must find," Rosenblatt added.
Connolly, 74, was Bulger's FBI handler and was convicted in 2002 in federal court of racketeering for protecting members of his Winter Hill Gang from prosecution and tipping them about informants in their ranks. He completed a 10-year sentence in the case.
Bulger, the loose blueprint for the Martin Scorsese film "The Departed," was a fugitive for 16 years until his 2011 capture at an apartment in Santa Monica, California. Bulger is serving a life sentence for convictions in August 2013 of numerous crimes, including involvement in 11 murders.
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