FOX UNDERCOVER - Tom Foley was part of the team at the Massachusetts State Police that helped engineer the deal allowing Winter Hill hitman John Martorano to testify against his former partner James "Whitey" Bulger in exchange for a 12-year prison sentence, but the now-retired investigator says he wishes the confessed killer was serving the rest of his days behind bars.
"Was it distasteful? Yeah. Did we have sleepless nights over going into an agreement like that? Yes we did. Did we know at that time that we would be sitting in a courtroom at some point, sitting here trying to explain what we were thinking? Absolutely. But if we didn't do it, nothing was going to change," Foley told FOX Undercover reporter Mike Beaudet.
And change was needed to make the case against Bulger, even if it meant cutting a deal with Martorano, who admits to killing 20 people. Until his cooperation, investigators had never made a murder case against Winter Hill bosses Bulger or Stephen "The Rifleman" Flemmi.
Foley started working on the Bulger investigation in 1990 while running the state police organized crime unit. He went on to become colonel before retiring. He was the second witness to testify in the Bulger trial that started earlier this month.
He said the big break in the case came when Martorano learned that his partners, Flemmi and Bulger, had been longtime FBI informants. Martorano decided to cooperate and told Foley about his role and Bulger's alleged role in a string of unsolved murders
"Without a deal with Martorano, would Bulger not be on trial facing these charges today?" Beaudet asked him.
"No," Foley replied. "Bulger would have taken a hit of maybe four or five years on some of the initial charges we put together, but we had no murders on him at the time."
Foley's team hoped that Martorano's cooperation would also convince others. The strategy worked, and top Bulger lieutenant Kevin Weeks is now scheduled to testify against his former boss, as is Flemmi, who avoided the death penalty in exchange for his cooperation.
But the defense says the cooperating witnesses will say whatever they can to help themselves out.
"How can you trust what they're saying?" Beaudet asked Foley.
"That's a good question, Mike, and what we strived to do through this whole process was to be able to go out and pick apart Martorano's information, Weeks's information. It was made very clear to them if they stepped off base, then we were going to go after them. We were going to prosecute them," Foley replied.
But that's being questioned by another organized crime investigator, Mass. State Police Trooper Nunzio Orlando, who last year accused his boss in the organized crime unit of protecting Martorano from being investigated for new crimes Martorano has allegedly been committing. Orlando was recently moved out of the organized crime unit.
The defense tried unsuccessfully to use that information to delay the start of the trial. Through his attorney, Orlando stands by his story, but Foley doesn't believe it.
"Do you think Martorano is still committing crimes?" Beaudet asked.
"I don't think he is. I do not know. I'm retired now. Based upon information that I've spoken to other investigators about, there is no information regarding him out there committing those crimes. And if there is, the same team that put this case together would go after him again," Foley said.
In court Wednesday, Martorano admitted going to collect a $100,000 gambling debt after he got out of prison.
"Does that concern you at all to hear that?" Beaudet asked Foley.
"I hope he's not out there still trying to collect money out there. I wouldn't be happy about that," Foley replied.
To Foley's disappointment, Martorano has already profited by selling the rights to his life story. He's already made $250,000 and will make another $250,000 if the movie is made. He also profited by cooperating with Boston Herald columnist Howie Carr for Carr's book about Martorano.
But for now, Foley is more focused on the prosecution of Bulger.
"For you, what will justice be in this case?" Beaudet asked.
"That Bulger goes to jail for the rest of his life. That would be it and we can put this to bed once and for all," Foley replied.