The Avengers



In January, Brian Kelly, a prosecutor in the U.S. Attorney's Office, was promoted to chief of the public corruption unit. That same month, his longtime partner, Fred Wyshak, was given a special assignment: overseeing the various federal probes of the Big Dig. Instead of marking an end to their collaboration, however, the new jobs meant the pair would stay together, working to uncover fraud, bid rigging, labor racketeering, or other crimes that may have occurred in connection with the multibillion-dollar highway and tunnel project. If any two people can get to the bottom of this intractable municipal undertaking, Wyshak and Kelly can.

The two are the Batman and Robin of one of the biggest racketeering prosecutions in Boston history. But don't tell them that. It would only make them wince. It's true, though: Fourteen years ago, the two prosecutors started chasing James J. “Whitey” Bulger and his gang. They launched a big dig into Whitey's World, dismantling the crime boss's underworld fiefdom along with the now-laughable myth that he was some kind of Robin Hood-style figure with a big heart.

All of this means Wyshak and Kelly have become two of the most influential — yet least known — Bostonians. In a city full of outsized characters, they have almost no public profiles. You probably have never heard of them. Which is fine by them. They don't like talking, except in a courtroom or through their legal filings. In 1999 they would not sit for interviews for a book about Bulger and the Boston FBI that I co-authored. Finally they have agreed to talk for the first time about their partnership, because the court cases against Whitey's guys are now done. All the conspirators have been sentenced to prison in the past year or so: Bulger's partner, Stephen “the Rifleman” Flemmi; the gang's primary hit man, John Martorano; and Bulger's surrogate son, Kevin Weeks. Bulger himself is still on the run — January also marked the 10th anniversary of his disappearance — but for all intents and purposes, he's done, washed up.

That doesn't mean Wyshak and Kelly are looking for any tributes. They don't even like to see their names in the papers. It is an old-fashioned aversion to the public eye rooted in their personalities and in their line of work, which is shrouded in the secrecy of federal grand juries. They now are talking, but doing the interview doesn't stop them from moaning about having their photographs taken. “Brian's not going to like this,” Wyshak says with a laugh.

Back in 1991, Wyshak and Kelly united to form a team that would become extremely rare in federal law enforcement, both for its longevity and its accomplishments. Wyshak was 39 and already a veteran of battling organized crime. Kelly was 30 and new to the Boston office, eager to do something grander than the run-of-the-mill drug cases he had prosecuted in San Diego. “We had very little idea of what was to come,” says Wyshak.

No one did. Their racketeering case became one of the lengthiest prosecutions ever in Boston, if not the nation — a river of darkness that ran deep and wide. Unexpectedly, investigators found themselves up against FBI agents who had illegally protected the murderous Bulger and Flemmi as part of a deal in which those two men served as informants. The legal maneuverings would ultimately overlap the terms of five U.S. attorneys in Boston and be spun off into nearly 30 separate criminal cases.

Throughout it all, there were Wyshak and Kelly. Both say learning of the corruption in the FBI was the big shocker. “I don't know if it was naiveté,” says Kelly, “but before this I would have scoffed at the idea that a handful of homicidal maniacs could have corrupted and socialized with very powerful members of law enforcement who for so many years could block investigations against them.”

It put both men's faith in the system to the test. “Prosecutors want to believe the system works,” says Wyshak. “I can't say everybody who was responsible was brought to justice here, but the criminal justice system is served not only when people go to jail, but also when the wrongdoing is brought to light so that the public can see it.”

In the 14 years they've been together, Wyshak, 52, has gone gray. When he's in court, he now wears reading glasses. Wyshak's the one you'd cast as Batman. Besides being older, he's more imposing physically — tall and big chested. He was the starting quarterback in high school in South Burlington, Vermont, and he threw the discus for the track team. In his work, he's prickly and brash, and his skirmishes in court over the years with Mark Wolf, the federal judge who presided over the Bulger case, have become famous in legal circles. The prosecutor and the judge went toe-to-toe in their lively face-offs, which occasionally climaxed when Wolf would yell at Wyshak to sit down or be found in contempt.

Kelly, 44, brings the lighter touch of Robin to the team. Although his hair has thinned, he's retained a boyish gleam. Quickly he and Wyshak discovered their yin and yang — a chemistry that proved successful in adapting to the case's many prongs. “I was sort of the flamethrower and Brian would come in and put out the fire,” Wyshak says.

Opposing attorneys also picked up on their complementing personalities. “Fred Wyshak is abrasive, very blunt. Direct and quick tempered. He doesn't hesitate to insult you,” says Page Kelley, the assistant public defender who was one of Flemmi's lawyers when Flemmi pleaded guilty a year ago. “Brian Kelly is much less intimidating, and he's funny and kind of glib.”

For all of Wyshak's gruffness, he has a soft spot. He broke down at Flemmi's sentencing while identifying murder victims. “Here's this big guy, a very experienced, very tough guy, who was crying over the victims,” Kelley says. “It was just stunning — and humbling.”

Wyshak rarely displays such emotions in public, although they rest just below the surface. He pauses to compose himself, for example, while describing the Bulger case's impact on his family life. “You go to football games, try to make the big stuff, but it's the little stuff that goes on every day that you lose.” Wyshak takes a few breaths. “We were all pretty much going seven days a week, you know, 12 to 16 hours a day.”

Later he falters while praising his partner's loyalty.

“This is like the second time you're getting choked up,” Kelly says.

“Yeah.”

“Snap out of it.”

The two buck each other up.

Wyshak was the one who came up with the legal strategy that got the two prosecutors some traction in building evidence against Bulger: the idea of adding tougher, federal money-laundering charges in cases against bookmakers who worked for the Bulger gang. Accustomed to lighter gambling charges, the bookies began folding like crepe paper. “One of Fred's greatest strengths is that he can be unyielding,” Kelly says.

Wyshak's stubborn ways proved vital during the court hearings in 1998 when news about the FBI's protection of Bulger spilled out. Defense attorneys, Kelly says, figured the government would want to keep its dirty laundry from a full public airing. “The defense came and threatened us, like 'This is going to be ugly, messy. You better plea-bargain out of it. You gotta give us these deals.' There was a lot of pressure to plea out at a cheap rate. Fred wouldn't buy into it.”

Both men are local — Wyshak was born in Boston; Kelly grew up in Medway — so their transfers to the U.S. Attorney's Office in Boston more than a decade ago were homecomings of sorts. Wyshak cut his prosecutorial teeth in Brooklyn and during a stint in New Jersey, where he took on the Mafia. Kelly had done drug and violent-crime cases in southern California.

In the summer of 1991, the two joined with state police and drug and IRS investigators to go after Bulger, the South Boston crime boss with the benevolent reputation and a Houdini touch when it came to avoiding arrest. Eventually, of course, that image underwent a makeover. Bulger was a drug lord and a cold-blooded killer who had forged an unholy deal with his FBI handlers, John J. Connolly Jr. and Connolly's supervisor, John M. Morris. The case had by then become nothing less than a legal marathon.

“The word that comes to mind is indefatigable,” Martin G. Weinberg, a prominent Boston attorney who represented the gang's hitman, Martorano, says of Wyshak and Kelly. The court case, he recalls, began in 1995 as a “classic racketeering indictment,” with the feds going after gangsters.
“During the first stage, I saw Fred and Brian working as federal prosecutors defending the government's position and doing so ably.” Then, when the FBI abuses were uncovered, the case turned sharply, evolving “into something this community had never seen before — a textbook lesson in the dangers of power.”

Wyshak and Kelly didn't flinch. “I saw them become fueled in their professional desire to investigate fully the intersection of Bulger, Flemmi, and John Connolly,” Weinberg says.

Wyshak remembers well when Morris cut a deal and began talking. “This marked a key change in the way we looked at things,” he says. From then on, he and Kelly had to balance the responsibility of uncovering the FBI corruption while keeping intact the cases against Bulger, Flemmi, and their associates. “We did not resist investigating wrongdoing by Connolly or Morris, but we wanted the truth to come out in a way that would not jeopardize the ongoing prosecution,” says Wyshak. “For everybody's good, these guys needed to go to jail.”

That seismic turn magnified the strain that was an inextricable part of such a complicated case. To cope, Wyshak went home and worked on his house, adding a dining room and putting on a front porch. Kelly would lose himself by spending time with his family. “In a situation like this case,” he says, “you got to keep your sense of humor or else you'll go crazy.”

Loose ends remain in the Bulger-FBI case. Capturing Bulger may be the job of an FBI-led fugitive task force, and the Big Dig may be Wyshak's and Kelly's new focus, but don't think for a second that they've developed tunnel vision. Knowing Whitey's still out there drives them to distraction.

“You have to imagine,” says Wyshak, “for the past 10 years, when you go to a party people are always asking, 'Where's Whitey?' So it drives you crazy after a while. I'd love to get the call he's been caught.”

Adds the ever-eager Kelly, “Our case is prepped and ready to go.”