The FBI appealed Judge Gertner's decision. This week a Justice Department lawyer told a panel of First Circuit judges that the evidence before Judge Gertner failed to support her findings. Given the deference that appellate courts give to a district judge when she decides what the evidence does or doesn't prove, that argument is usually a loser. It's an even tougher sell when the judge writes a detailed decision (pdf) pointing to the specific evidence she accepts as true.
Judge Gertner's summary of her findings tells a chilling story:
The plaintiffs were convicted of Deegan’s murder based on the perjured testimony of Joseph "The Animal" Barboza ("Barboza"). The FBI agents "handling" Barboza, Dennis Condon ("Condon") and H. Paul Rico ("Rico"), and their superiors -- all the way up to the FBI Director -- knew that Barboza would perjure himself. They knew this because Barboza, a killer many times over, had told them so -- directly and indirectly. Barboza’s testimony about the plaintiffs contradicted every shred of evidence in the FBI’s possession at the time -- and the FBI had extraordinary information. Barboza's testimony contradicted evidence from an illegal wiretap that had intercepted stunning plans for the Deegan murder before it had taken place, plans that never included the plaintiffs. It contradicted multiple reports from informants, including the very killers who were the FBI’s "Top Echelon" informants.
And even though the FBI knew Barboza’s story was false, they encouraged him to testify in the Deegan murder trial. They never bothered to tell the truth to the Suffolk County District Attorney’s Office. Worse yet, they assured the District Attorney that Barboza's story "checked out."
Nancy Gertner is an extraordinarily capable judge. Her carefully written, 224 page decision should easily withstand the Justice Department's assertion that she got the facts wrong.
Appellate challenges to a judge's legal reasoning are usually more productive than attacks on a judge's fact-finding, but the Justice Department isn't likely to persuade the court of appeals that Salvati's prosecution by state authorities for a state crime in a state court created no duty for the FBI to disclose evidence of his innocence.
Judge Juan R. Torruella, a member of the three-judge Appeals Court panel, noted that the FBI played a key role in the trial. "The state had no case until you provided Barboza," he said.
Salvati would like to see the FBI and the Justice Department get on the side of justice.
"They just don't care," he said. "That's the bottom line. They'll never say they're sorry."
Salvati should win the appeal. The only question is whether he'll live long enough to collect his share of the damages.
