(CN) - The U.S. government must pay $1.15 million to the family of a man murdered by Whitey Bulger during his years as an FBI-protected informant, the 1st Circuit ruled.
Louis Litif was murdered by James "Whitey" Bulger in 1980, and it has been established through multiple cases that the murder and several other criminal acts occurred while FBI agents in Boston sheltered Bulger and his associate, Stephen "The Rifleman" Flemmi, over several decades.
Litif was a bookmaker who was charged in 1979 with the murder of an associate. Seeking leniency while out on bail in March or April 1980, Litif secretly offered to cooperate with the Boston police investigating an ongoing drug conspiracy case involving Bulger and his Winter Hill gang.
Unbeknownst to Litif and his attorney, however, Bulger was a "top echelon" FBI informant and the agency was "taking measures to protect Bulger from prosecution so that he could continue supplying information."
About three weeks after his offer, Litif's stabbed and gunshot-riddled body was found in the trunk of his car.
The investigation into the murder went nowhere, but several newspaper reports over the next two decades delved into Bulger's relationship with the FBI and, ultimately, the deaths of several former associates who had offered to testify against him in various cases.
This relationship was further revealed - and for the first time documented in a publicly available legal document - by U.S. District Judge Mark Wolf in his 1999 decision for United States v. Salemme.
Together with testimony in other, contemporaneous cases, "the decision warranted at least a strong suspicion of systematic FBI leaks of informant names to Bulger followed by their death at Bulger's hands," according to the D.C. Circuit, tasked with handling the Litif family's appeal.
Litif's widow and two children won a $1.15 million judgment after a 12-day bench trial determined that the government was responsible for the slaying.
In its appeal, the government claimed that the statute of limitations had run out; that the Litifs could not document a government leak or that Bulger killed Litif; and that the estate could not show liability based on conscious pain and suffering.
The estate cross-appealed the award as inadequate, given Litif's conscious pain and suffering before his death.
The 1st Circuit handed down its ruling on these claims nearly a year to the day after it voided an award of $8.4 million in damages to the families of two men killed by Bulger in 1982. That 2011 decision held that the families waited too long to file wrongful death claims against the FBI, which had aided and abetted the murders.
The Litifs fared better, however, with the judges finding no error in waiting two years to file after the 1999 revelations about Bulger.
In 1999, there were no identifiable first-hand witnesses or admissible evidence to show that Litif was an informant, according to the 20-page decision.
"The plaintiffs could not prove based on newspaper stories quoting anonymous sources that Bulger knew of Litif's offer to cooperate," Judge Michael Boundin, writing for a three-judge panel, describing the lower court's analysis. "The FBI was formally and informally denying involvement; Litif was not mentioned in any detail in the Salemme proceedings; and most of the helpful witnesses (e.g., Bulger, Connolly) would hardly agree to incriminate themselves."
There was some hearsay evidence, according to the court, citing one witness who testified to seeing Litif enter a Boston bar on the night of his death, and then seeing Bulger or Flemmi carry out a body bag and load it into a car trunk. That witness was later murdered himself, apparently the victim of another FBI leak.
But the trial court considered other materials in pinning the murder on Bulger, the panel found.
"In other words, there was a pattern of FBI leaks of informants to Bulger and Flemmi, which was well supported: Flemmi testified that [FBI Agent John] Connolly leaked the names of between six and twelve informants to him," Boudin wrote. "How many were then murdered was unclear but ... [at least three men] ... were apparently leak victims. And Connolly ... was present when Litif's plans to cooperate and incriminate Bulger were made known to the Boston Police, posing a serious danger to Connolly's continued use of Bulger as an informant and a threat to expose Connolly's role in covering up crimes."
Bulger also made incriminating remarks about Litif while discussing the upcoming wedding of an associate, Kevin Weeks, according to Weeks' testimony. Bulger said Litif "probably won't even show" for the wedding, which occurred on April 26, 1980. Then at the actual reception, Bulger pointed at an empty chair and said, "Say hi to Louie," according to the testimony, which the court reproduced in a footnote. Flemmi interjected by making wiping motions with his napkin in the area where Litif's head would have been. "He keeps on drinking but it keeps leaking out of his head," Flemmi said, according to Weeks' testimony.
The appellate judges said these statements, coupled with motive and timing, show that Bulger knew what happened to Litif. "All that was required for plaintiffs to prevail was to show that this was more likely than not," Boudin wrote.
But the Litifs needed more to show they deserved more damages for the victim's conscious pain and suffering.
Litif was stabbed dozens of times before he was shot in the back of the head, but nothing proved that the murder took more than a couple of minutes. The government argued that the family could not prove Litif was conscious when he was stabbed and that he could have been shot first.
"This is possible, but the district judge was right to deem it improbable," Boundin wrote. "Bulger, as other evidence indicates, was a cruel man; and stabbing a turncoat while alive and then ensuring his death with a bullet would in any event be more probable than stabs pointlessly inflicted after unconsciousness or death." (Emphasis in original.)
Claims of torture - supported by multiple stab wounds to the liver that would have been very painful - are also conjecture, according to the court.
The Litifs were awarded $350,000 for Litif's conscious pain and suffering, and that aligns with the awards in other cases, Boudin wrote. The 5th Circuit awarded $140,000 for pain and suffering award when a victim was stabbed or cut at least 62 times, and a New York appeals court reduced another stabbing-death award to $300,000 from $1 million.
Both sides must bear their own costs for the appeal, the court added.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.