Drama in Courtroom No. 5: Who Are the Bad Guys?

It's difficult to tell the wise guys from the nice guys in courtroom No. 5 at the federal courthouse in Boston.

The feds - the very people who struggled for decades to collar the mob in New England - are squirming in their seats before the glare of a federal district judge. The five dapper criminal defendants, including the reputed head of the region's mafia, smile in confidence and josh with family members seated in the gallery. They know their phalanx of attorneys - spread across two tables before them - has the upper hand.

The five alleged mobsters are facing federal charges that could put them away for years. But in a surreal twist, the drama in this vaulted courtroom has federal law-enforcement officials playing the role of goons, stonewalling and sidestepping accusations that they acted illegally to obtain key evidence against the mob.

At stake is nothing less than the future strength of organized crime in New England.

If Judge Mark Wolf determines the disputed evidence is inadmissible in court, the government may be forced to drop its case against Francis (Cadillac Frank) Salemme and his four codefendants. Worse for the mob-busters, organized-crime convictions dating back 20 years may be called into question - and retrials may be required.

Defense attorneys see even bigger implications: They say the hearings now under way in the wainscotted courtroom No. 5 may affect convictions not only in New England, but also nationwide.

But there's an important underlying question in this case, says Daniel Monti, a Boston University sociology professor. The issue is "how much latitude the courts and the public are going to give law-enforcement officials to deal effectively with criminals."

Tape-recording of the mob's secrets

At the center of the dispute is a 1989 tape-recording of four wiseguys being inducted into the La Cosa Nostra. The FBI used a court-approved wiretap to tape the ceremony - and the recording has been considered a major coup for the feds, who say it definitively proves that the mafia exists in the US.

The snag is that the government may have falsely obtained that wiretap by not divulging it had informants who were participants in that ceremony. To obtain a wiretap, the government is required to tell the court why conventional investigative techniques, including informants, are not available or are unlikely to succeed.

Judge Wolf, who earlier in his legal career helped to write the federal law governing use of such privacy-invading technology, is not certain his colleagues on the bench had the straight scoop at the time they authorized the wiretaps.

It's now clear the FBI had at least two informants at the time it obtained the wiretap - including James (Whitey) Bulger, brother of former Massachusetts Senate leader William Bulger. Now, Wolf is on a mission to determine how many others were tipping off law-enforcement officials. But the US attorneys have refused to say, risking jail for contempt of court.

So the judge has hauled three jailed mobsters into courtroom No. 5 to ask them if they were informants. In dramatic testimony Wednesday, Anthony (Sonny) Mercurio admitted he had been at the time of the October 1989 induction ceremony.

Showdown between the judge and the feds

But why would the judge jeopardize so many convictions? Many legal experts say Wolf has taken the high road to make sure the government doesn't play fast and loose with the rules.

"Every time [the government] identified an additional informant, it strengthened the argument that the defense counsel has," says Evan Slavitt, a former US assistant attorney and now a criminal defense lawyer in Boston. If the judges who entertained wiretap requests had known the government had informants, "they would not have permitted this electronic surveillance," he says.

But even in a worse-case scenario for the government, New England's organized-crime families won't be able to regain control of their illegal activities, says Dr. Monti. The damage has been done, and less sophisticated operatives have taken over former mob activities of loan-sharking, illegal betting, and drug-running.