Third District Court of Appeal

State of Florida 

Opinion filed April 12, 2023.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1111

Lower Tribunal No. F01-8287D

________________

John J. Connolly, Jr.,

Appellant,

vs.

The State of Florida, 

Appellee.

An appeal from the Circuit Court for Miami-Dade County, Nushin G. 

Sayfie, Judge.

Miami Law Innocence Clinic, Craig J. Trocino, James E. McDonald, 

P.A., and James E. McDonald, for appellant.

Ashley Moody, Attorney General, Michael W. Mervine, and Linda Katz, 

Assistant Attorneys General, for appellee.

Before EMAS, HENDON, and MILLER, JJ. 

MILLER, J.
2

Appellant, John Joseph Connolly, Jr., a former Federal Bureau of 

Investigation (“FBI”) agent, challenges the post-evidentiary hearing denial of 

his motion for postconviction relief alleging, among other grounds, that 

appellee, the State of Florida, violated his due process rights by failing to 

disclose exculpatory evidence as required by the watershed United States 

Supreme Court decision, Brady v. Maryland, 373 U.S. 83 (1963). Because 

Connolly failed to establish a “reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would have been 

different,” United States v. Bagley, 473 U.S. 667, 682 (1985), we affirm.

1

BACKGROUND

This case traces its origins to a decades-long effort by the FBI to 

infiltrate the La Cosa Nostra, an organized crime syndicate responsible for a 

myriad of murders in the Boston area. In 1968, Connolly joined the FBI and 

was soon tasked with cultivating certain government informants, including 

James J. “Whitey” Bulger and Stephen “the Rifleman” Flemmi, two notorious 

members of a rival criminal organization, the Winter Hill Gang. Connolly and 

his immediate supervisor, John Morris, developed close relationships with 

1 We summarily affirm the remaining grounds. See State v. Connelly, 748 

So. 2d 248, 252–53 (Fla. 1999) (concluding that verdicts were not truly 

inconsistent where inconsistency could have been the result of jury lenity, 

“and, therefore, verdicts do not always speak to the guilt or innocence of a 

defendant”).
3

Bulger and Flemmi. Both FBI agents were eventually corrupted, and 

Connolly purportedly divulged confidential information to Bulger and Flemmi

that led to the slaying of a prospective informant, John Callahan, the 

president of World Jai-Alai, at the hands of a Bulger hitman, John Martorano, 

in 1982. 

Years later, Connolly was indicted for first-degree murder in MiamiDade County. The case proceeded to a multi-month jury trial. The facts 

adduced at trial are set forth in this court’s earlier opinion in Connolly v. State, 

172 So. 3d 893 (Fla. 3d DCA 2015). As salient here:

In 1973, the defendant . . . was transferred to the Boston office 

of the FBI where he was assigned to the organized crime 

division. In 1975, the defendant recruited Bulger and Flemmi to 

work as FBI informants, and over time, the defendant became 

corrupted by his relationship with Bulger, Flemmi, and the Winter 

Hill Gang. Although he provided some of the information he 

obtained from Bulger and Flemmi to the FBI, the defendant also 

submitted false and misleading information and reports to the FBI 

to protect Bulger and Flemmi, and he provided Bulger and 

Flemmi with confidential FBI and law enforcement information, 

which enabled Bulger and Flemmi to avoid arrest and 

prosecution by federal, state, and local law enforcement.

Flemmi testified that the defendant was considered a member of 

their criminal organization and that he was essentially on their 

payroll. In exchange for the defendant’s services (providing 

misleading and false information to the FBI and giving Bulger and 

Flemmi confidential law enforcement information), the defendant 

was paid large sums of money. Bulger and Flemmi also used 

the defendant as a conduit for the delivery of cash and gifts from 

Bulger and Flemmi to other FBI agents. Thus, the defendant was 

working both sides and profiting from each. He benefited 
4

professionally by providing organized crime information to the 

FBI, and he benefited personally and financially by assisting 

Bulger and Flemmi.

The jury learned about some of the confidential information the 

defendant provided to Bulger and Flemmi. For example, in 1976, 

the defendant warned Bulger and Flemmi that Richard Castucci, 

another FBI confidential informant, had given the FBI the location 

of two Winter Hill Gang members who were federal fugitives. 

Based on the information provided to them by the defendant, 

Bulger and Flemmi warned the two fugitives, and they, along with 

Martorano, murdered Castucci for his disclosures to the FBI. In 

1978, the defendant also warned Bulger and Flemmi that they 

were about to be indicted in a federal racketeering case, but the 

defendant told them that if they agreed not to kill Anthony “Tony”

Ciulla, who was cooperating with the government as a witness 

against members of their criminal organization, Bulger and 

Flemmi would not be indicted. Additionally, the defendant 

warned Bulger and Flemmi that Martorano was going to be 

indicted. As a result, Martorano went into hiding in Miami.

In 1978, Callahan, the victim in the instant case, was the owner 

and president of World Jai Alai. When Callahan learned that the 

authorities in Connecticut had discovered his ties to the Winter 

Hill Gang and other organized crime figures in Boston, he sold 

World Jai Alai to Roger Wheeler (“Wheeler”). Four years later, 

when Callahan decided that he wanted to repurchase World Jai 

Alai from Wheeler, but Wheeler refused to sell, Callahan solicited 

Bulger, Flemmi, and Martorano to murder Wheeler. On May 27, 

1981, Martorano shot and killed Wheeler at a country club in 

Tulsa, Oklahoma.

During its investigation of the Wheeler murder, the FBI began 

searching for members of the Winter Hill Gang to cooperate with 

the FBI. Brian Halloran (“Halloran”), a member of the Winter Hill 

Gang who had been indicted for an unrelated murder in Boston, 

agreed to cooperate with the FBI in the Wheeler murder 

investigation in order to obtain leniency in his pending case.
5

When the defendant learned from his supervisor, Special Agent 

John Morris, that Halloran was cooperating with the FBI and that 

Halloran had implicated Bulger and Flemmi in the Wheeler 

murder, the defendant warned Bulger and Flemmi. After this 

initial warning, the defendant contacted Bulger and Flemmi again 

to warn them that the FBI had outfitted Halloran with a body wire 

and had directed Halloran to meet with Callahan. After being 

alerted by the defendant, Bulger and Flemmi warned Callahan 

that Halloran intended to inform on him, and Bulger, with the help 

of other Winter Hill Gang members, murdered Halloran.

Because the Halloran murder was committed on a public street 

in Boston, the investigation intensified. In an effort to deflect 

suspicion away from Bulger, Flemmi, and the Winter Hill Gang, 

the defendant prepared and submitted a series of false reports 

suggesting that other organized crime factions in Boston were 

responsible for Halloran’s murder. Despite the defendant’s 

efforts, the FBI continued to believe that Bulger and Flemmi were 

involved in the Wheeler and Halloran murders, and its 

investigation focused on locating Callahan to obtain his 

cooperation. When the defendant learned that the FBI was 

looking for Callahan, the defendant contacted Bulger and Flemmi 

and told them that Callahan would likely cooperate and implicate 

Bulger, Flemmi, and Martorano in the Wheeler murder, and the 

defendant suggested that they contact their hit man, Martorano, 

to “handle it” so none of them would be caught.

Thereafter, Bulger and Flemmi met with Martorano, informed him 

what the defendant had told them, and Martorano agreed to kill 

Callahan before the FBI could locate him, specifically agreeing 

to kill Callahan in Florida because of the “heat on them” in 

Boston. After meeting with Martorano, Bulger and Flemmi met 

with the defendant and told the defendant that Martorano and his 

associate, Joe MacDonald, were going to “take care of”

Callahan. Flemmi testified that the defendant clearly knew that 

“tak[ing] care of” Callahan meant they were going to have 

Callahan killed based on the information the defendant had given 

them—that the FBI would find Callahan, who would likely 

cooperate with the FBI and implicate Bulger, Flemmi, and 

Martorano in Wheeler’s murder. On July 31, 1982, Martorano 
6

met Callahan at the Fort Lauderdale Airport, shot Callahan in the 

back of the head, put Callahan in the trunk of a car, and left the 

car and body at the Miami International Airport.

In anticipation of Callahan’s murder, the defendant filed false 

reports with the FBI in an effort to mislead the FBI and to protect 

Bulger and Flemmi. In these reports, the defendant provided 

alibis for Flemmi and Bulger for both the Halloran murder and the 

planned Callahan murder, and the defendant also falsely 

reported that Callahan had a falling-out with a group of Cuban 

drug dealers in Miami in order to deflect the FBI’s attention away 

from Flemmi, Bulger, and Martorano.

After Callahan was murdered, the FBI and other law enforcement 

agencies redoubled their efforts into the investigation, and the 

defendant continued to manipulate the system to protect Bulger, 

Flemmi, and himself. However, in 1990, after the defendant had 

retired from the FBI, Bulger and Flemmi became the subjects of 

a federal grand jury investigation. The defendant, who had 

maintained his relationship with other FBI agents, kept Bulger 

and Flemmi informed as to the progress being made in the FBI’s 

investigation of Bulger and Flemmi, and, when the defendant 

learned Bulger and Flemmi were about to be indicted by the 

federal grand jury and arrested, he warned them. Bulger went 

into hiding, while Flemmi, who did not react quickly enough, was 

arrested.

After Flemmi was arrested, the defendant wrote a letter to the 

presiding federal judge in an effort to have Flemmi’s case 

dismissed. Many of the statements he made in this letter were 

false. The defendant also provided sensitive FBI information and 

documents to Flemmi’s defense attorney, and he counseled 

Flemmi to falsely testify that the defendant’s supervisor, Special 

Agent Morris, warned Bulger about the federal indictment rather 

than the defendant.

Id. at 899–901 (alteration in original).
7

The jury found Connolly guilty of second-degree murder with a firearm, 

and he was sentenced to forty years in prison.2 He then filed a direct appeal 

challenging the firearm reclassification applied to the second-degree murder 

conviction on numerous of grounds. See Connolly, 172 So. 3d at 898. This

court affirmed his conviction and sentence in an en banc decision. Id. at 

925–26. The Florida Supreme Court subsequently denied review, see

Connolly v. State, No. SC15-1585, 2016 WL 224185 (Fla. Jan. 19, 2016), 

and a later petition for ineffective assistance of appellate counsel proved 

unsuccessful, see Connolly v. State, 288 So. 3d 638 (Fla. 3d DCA 2019).

In early 2017, while his petition for ineffective assistance of appellate 

counsel was pending, Connolly filed a motion for postconviction relief 

pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, he 

alleged, among other grounds, that his attorneys were ineffective for failing 

to conduct an adequate investigation, and the State violated his due process 

rights by failing to disclose exculpatory evidence. 

In support of his motion, Connolly appended a post-trial affidavit 

executed by one of the State’s listed trial witnesses, former assistant agentin-charge of the Boston FBI office, Robert Fitzpatrick. The affidavit, bearing 

2 Connolly has since been granted conditional medical release. See §

947.149, Fla. Stat. (2020). 
8

a date of December 3, 2013, detailed a conversation Fitzpatrick purportedly 

had with James Marra, the lead investigator assigned to the Callahan 

murder, at some point between 2006 and 2008 outside of a Boston 

courtroom. Fitzpatrick attested he informed Marra that Connolly was 

sequestered from the Wheeler investigation because, during that time, he 

was pursuing a graduate degree at Harvard University. Fitzpatrick 

additionally asserted he believed Morris presented a viable alternative 

source for the leak.

Upon receiving the postconviction relief motion and accompanying

affidavit, the State produced a previously undisclosed e-mail Marra 

forwarded to prosecutors in 2006. In the e-mail, Marra wrote:

[Robert] Fitzpatrick voluntarily called me this afternoon. . . . 

Fitzpatrick . . . stated that it was his personal “opinion” that John 

Connolly was not responsible for the Halloran and Callahan 

murders. However, he offered no specific information to support 

his opinion and agreed that he was not privy to all the evidence 

in the Connolly murder prosecution case in Florida. Fitzpatrick 

added that he has no information that Connolly did or did not 

reveal FBI informant identities to Bulger/Flemmi.

The trial court convened an evidentiary hearing on the motion. 

Fitzpatrick was too ill to travel or testify. His testimony was never 

perpetuated, and he died shortly after the evidentiary hearing. 

Consequently, he never formally corroborated the contents of the affidavit. 
9

Notwithstanding these facts, the defense introduced Fitzpatrick’s affidavit 

into evidence over a hearsay objection by the State. 

Both of Connolly’s court-appointed attorneys testified extensively 

concerning their reasons for failing to conduct a deposition or call Fitzpatrick 

as a witness at Connolly’s 2008 trial. They stated that they learned before 

trial the State did not intend to call Fitzpatrick. This decision was purportedly 

prompted by credibility concerns. Connolly was similarly wary of Fitzpatrick 

and concerned he would not offer favorable evidence because he was

“unstable.” Both attorneys indicated that, had they known of the e-mail, they 

would have reconsidered their decision. 

Marra confirmed the contents of his e-mail and added that he met 

Fitzpatrick in 2006, in person, outside of a Boston courtroom. He denied 

having discussed the strength of the case at that time and instead testified 

that Fitzpatrick later telephoned him and called into doubt Connolly’s guilt. 

Marra maintained that Fitzpatrick offered no evidence in support of his 

opinion.

The State introduced multiple exhibits designed to impeach the 

veracity of the statements contained within Fitzpatrick’s affidavit. Heavily 

featured were transcripts from related prosecutions, FBI teletypes and 
10

reports, and a myriad of published statements by Fitzpatrick implicating 

Connolly in criminal activity.

At the conclusion of the hearing, the trial court determined that the 

State deliberately and intentionally withheld the e-mail. It further found that, 

although the statement contained within the e-mail was favorable, it was not 

material, and therefore Connolly failed to establish a Brady violation. A 

motion for rehearing proved futile, and the instant appeal ensued. 

STANDARD OF REVIEW

We apply a mixed standard of review to the postconviction denial of a 

Brady claim following an evidentiary hearing. Bolin v. State, 184 So. 3d 492, 

501 (Fla. 2015). We defer to factual findings that are supported by 

competent, substantial evidence and apply the law to those findings de novo. 

Id.

ANALYSIS

I. Brady and its Progeny

In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963) and its 

progeny, the United States Supreme Court established the parameters of the

prosecutorial obligation to furnish the defendant exculpatory evidence in a 

criminal case. The Court held in Brady that “suppression by the prosecution 

of evidence favorable to an accused upon request violates due process 
11

where the evidence is material either to guilt or to punishment, irrespective 

of the good faith or bad faith of the prosecution.” Id. at 87. The Court later 

confirmed that the duty to disclose such evidence exists even in the absence 

of a specific request by the accused, United States v. Agurs, 427 U.S. 97, 

107 (1976), and extends to impeachment evidence, Bagley, 473 U.S. at 676. 

The Brady rule encompasses evidence known only to law enforcement 

and not the prosecutor. See Kyles v. Whitley, 514 U.S. 419, 438 (1995). 

Consistent with this principle, “the individual prosecutor has a duty to learn 

of any favorable evidence known to the others acting on the government’s 

behalf in the case, including the police.” Id. at 437.

The defendant bears the burden of establishing a Brady violation. 

Archer v. State, 934 So. 2d 1187, 1202 (Fla. 2006). In this regard, the 

defendant must establish three components: “The evidence at issue must be 

favorable to the accused, either because it is exculpatory, or because it is 

impeaching; that evidence must have been suppressed by the State, either 

willfully or inadvertently; and prejudice must have ensued.” Strickler v. 

Greene, 527 U.S. 263, 281–82 (1999). 

The definition of “favorable” in this context is not difficult to ascertain. 

Evidence that fortifies the defense’s case or has impeachment value is 

favorable. See Allen v. State, 854 So. 2d 1255, 1259 (Fla. 2003). 
12

Whether evidence has been suppressed by the State involves a 

slightly more nuanced analysis. The Florida Supreme Court has explained 

that “[t]here is no Brady violation where the information is equally accessible 

to the defense and the prosecution, or where the defense either had the 

information or could have obtained it through the exercise of reasonable 

diligence.” Floyd v. State, 18 So. 3d 432, 451 (Fla. 2009) (alteration in 

original) (quoting Provenzano v. State, 616 So. 2d 428, 430 (Fla. 1993)). 

And, “[e]qually available evidence is not suppressed where ‘the defendant 

was aware of the exculpatory information.’” Owen v. State, 986 So. 2d 534, 

547 (Fla. 2008) (quoting Way v. State, 760 So. 2d 903, 911 (Fla. 2000)). 

Accordingly, investigators and prosecutors are not required to affirmatively

furnish a defendant with information he already has or can obtain with any 

reasonable diligence. See 15 Fla. Jur. 2d Criminal Law—Procedure § 1544 

(2022) (“The prosecution’s disclosure obligations principally concern those 

matters not accessible to the defense in the course of reasonably diligent 

preparation.”). 

Under Brady, evidence is material “if there is a reasonable probability 

that, had the evidence been disclosed to the defense, the result of the 

proceeding would have been different.” Bagley, 473 U.S. at 682. “A

reasonable probability does not mean that the defendant ‘would more likely 
13

than not have received a different verdict with the evidence,’ only that the 

likelihood of a different result is great enough to ‘undermine[ ] confidence in 

the outcome of the trial.’” Smith v. Cain, 565 U.S. 73, 75–76 (2012) 

(alteration in original) (quoting Kyles, 514 U.S. at 434). The court must 

consider the cumulative effect of the suppressed evidence. Cardona v. 

State, 826 So. 2d 968, 973 (Fla. 2002). Thus, “[e]ven where favorable 

evidence is suppressed, a new trial will not be necessary where it is 

determined that the favorable evidence did not result in prejudice.” Duckett 

v. State, 918 So. 2d 224, 235 (Fla. 2005) (quoting Wright v. State, 857 So. 

2d 861, 870 (Fla. 2003)). 

II. Fitzpatrick’s Affidavit

Against this judicial landscape, we examine the instant case. As a 

threshold matter, the State contends that because Fitzpatrick did not testify 

at the evidentiary hearing, his affidavit constitutes inadmissible hearsay and 

should not factor into our analytical matrix. Relying upon Florida Supreme 

Court precedent, we agree and confine our review to whether the failure to 

disclose the statement Fitzpatrick made to Marra amounted to a violation 

under Brady and its progeny. See Williamson v. State, 961 So. 2d 229, 234–

35 (Fla. 2007) (finding that affidavit of declarant unavailable to testify 

constituted inadmissible hearsay in postconviction evidentiary hearing); 
14

Randolph v. State, 853 So. 2d 1051, 1062 (Fla. 2003) (affirming exclusion of 

affidavit by a witness who died before postconviction evidentiary hearing). 

III. Fitzpatrick’s Statement to Marra

Throughout his testimony, Marra confirmed that Fitzpatrick merely 

communicated his conclusory opinion that Connolly was innocent. This type 

of opinion, untethered to any evidentiary support, has generally been 

condemned as inadmissible. See Roundtree v. State, 145 So. 3d 963, 965 

(Fla. 4th DCA 2014) (“[A] witness’s opinion as to the credibility, guilt or 

innocence of the accused is generally inadmissible . . . .”); Jackson v. State, 

107 So. 3d 328, 330 (Fla. 2012) (finding reversible error where State 

introduced videotape of defendant’s interrogation, in which officers 

repeatedly expressed their personal opinions about defendant’s guilt); 

Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000) (“We begin our analysis 

with the basic proposition that a witness’s opinion as to the guilt or innocence 

of the accused is not admissible.”); Dubon v. State, 295 So. 3d 259, 273 (Fla. 

4th DCA 2020) (quoting Glendening v. State, 536 So. 2d 212, 221 (Fla. 

1988)) (“[A]n opinion as to the guilt or innocence of an accused is not 

admissible.”). Nonetheless, the statement, as confirmed within the e-mail,

raises questions as to Connolly’s culpability, satisfying the first element of 
15

Brady. As neither the e-mail nor the statement was disclosed by the State

prior to trial, we must examine materiality.3

The State argues there is no record support for the finding below that 

the prosecutors deliberately and intentionally withheld the e-mail. While this 

argument is persuasive, the critical inquiry in this context is not the degree 

of intentionality of the act. Brady extends equally to both intentional and 

inadvertent suppressions. See, e.g., Giglio v. United States, 405 U.S. 150, 

153 (1972) (internal quotation marks omitted) (“[S]uppression of material 

evidence justifies a new trial irrespective of the good faith or bad faith of the 

prosecution.”); Way, 760 So. 2d at 912 (finding photographs of crime scene 

were nonetheless suppressed by State where it affirmatively represented all 

such photographs had been produced to defense and, in doing so, 

unintentionally caused defense to believe same). 

The defense, in turn, contends that a deposition or interview would 

have led to the discovery of Fitzpatrick’s exculpatory statement. This 

argument is little more than a backdoor conduit for the otherwise 

inadmissible affidavit, and it fails substantively on the record before us. 

3 Because Fitzpatrick was listed as a prosecution witness from the outset of 

the case, whatever information he relayed to Marra was available “through 

the exercise of reasonable diligence.” Floyd, 18 So. 3d at 451 (quoting 

Provenzano, 616 So. 2d at 430).
16

Marra was the sole witness to testify at the evidentiary hearing as to 

Fitzpatrick’s opinion, and he did not deviate from the synopsis he provided

to the prosecutors in the e-mail. The defense offered nothing to corroborate 

the affidavit-based contention that Connolly was insulated from the Wheeler 

investigation. And any such claim is clearly refuted by a holistic review of 

the evidence.

The record is littered with paperwork, including teletypes, memoranda, 

reports, and other internal documents, demonstrating that Connolly had 

access to the investigation and falsified documents to protect the informants 

and hinder the discovery of his own illegal acts. Moreover, the defense was, 

at a minimum, constructively aware of the dates Connolly attended Harvard, 

the confidentiality safeguards implemented by the FBI, and the structure of 

the agency. This type of imputed knowledge has been held sufficient to 

defeat similar Brady claims. See, e.g., Harris v. Kuba, 486 F.3d 1010, 1015 

(7th Cir. 2007) (holding no Brady violation where evidence of plaintiff’s alibi 

was not disclosed, because plaintiff was aware of his own whereabouts); 

Rector v. Johnson, 120 F.3d 551, 560 (5th Cir. 1997) (holding State’s failure 

to disclose alibi witness statement did not constitute Brady violation because 

defendant, “better than anyone else, knew his whereabouts on the night of 

[the victim’s] murder, and therefore his failure to discover the information 
17

possessed by [the witness] was the result of a lack of diligence on his part”); 

United States v. Dawson, 425 F.3d 389, 393 (7th Cir. 2005) (finding taped 

conversations that defendants were part did not constitute Brady material 

“because the defendants, being parties to the conversation, were equally 

aware” of what was said); United States v. Diaz, 922 F.2d 998, 1007 (2d Cir. 

1990) (holding government’s failure to advise defendant in advance that 

witness would testify in his favor that he was not present at time of drug 

transaction was not a Brady violation because defendant was aware of 

essential facts of witness’s testimony); United States v. Roane, 378 F.3d 

382, 402 (4th Cir. 2004) (“[I]nformation actually known by the defendant falls 

outside the ambit of the Brady rule.”); Raley v. Ylst, 470 F.3d 792, 804 (9th 

Cir. 2006) (finding no Brady violation where petitioner “possessed the salient 

facts regarding the existence of the records that he claims were withheld”).

Similarly, to the extent the e-mail implicated Morris as an alternative 

culprit, the facts underlying this inference were universally known. On direct 

and cross-examination, Morris conceded he had superior control over the 

investigation due to his senior rank. He acknowledged he met with the 

informants on multiple occasions and admitted to having illegally accepted 

gifts and cash. He testified he was aware of the details of the Wheeler 

investigation, and he conceded he received immunity in exchange for 
18

cooperation. Given this testimony, the information needed to develop the 

theory was available to the defense, and the e-mail offered nothing new. 

See, e.g., Spirko v. Mitchell, 368 F.3d 603, 611 (6th Cir. 2004) (finding

State’s failure to produce evidence of defendant’s alleged accomplice’s alibi

did not constitute Brady violation because “the evidence was available to

[defendant] from other sources than the state, and he was aware of the

essential facts necessary for him to obtain that evidence”). 

Lastly, the record before us is replete with irreconcilably contradictory 

statements rendered by Fitzpatrick in the years leading up to his death. To 

identify but a few examples, an internal report reflected that Fitzpatrick 

received a complaint that Connolly was “rifling” through a colleague’s file on 

the Wheeler investigation at around the same time as the FBI developed the 

informants as suspects. Two years before he executed the affidavit, 

Fitzpatrick described Morris and Connolly as partners engaged in an 

“enterprise.” In a 2012 book excerpt, Fitzpatrick stated that Connolly 

contemporaneously informed Bulger that the FBI was seeking Halloran’s 

cooperation in the Wheeler investigation. Shortly before Connolly’s trial, 

Fitzpatrick appeared on “60 Minutes,” a weekly investigative news 

broadcast, and characterized Connolly as an “informant for Bulger.” On yet 

another occasion, Fitzpatrick told the Boston Herald, one of Boston’s two 
19

major daily newspapers, that Connolly was chiefly responsible for a string of 

murders committed by Bulger and Flemmi. This evidence, particularly 

viewed as a whole, fortifies the reliability concerns articulated by both

Connolly and the State prior to trial and negates any natural expectation that 

Fitzpatrick would have corroborated the contents of his affidavit before it was 

executed. 

The foregoing factors, in conjunction with the inability to produce

Fitzpatrick as a witness and the observation by Judge Rothenberg, writing 

for this court en banc, that “the evidence as to . . . [Connolly’s] participation 

in [Callahan’s] murder . . . [was] overwhelming,” Connolly, 172 So. 3d at 898,

yield the conclusion there is no “reasonable probability that, had the [e-mail]

been disclosed to the defense, the result of the proceeding would have been 

different,” Bagley, 473 U.S. at 682. Accordingly, we affirm the denial of 

postconviction relief.

Affirmed.