by Andrea Estes, Boston Herald

Thursday, July 6, 2000

The families of three Boston brothers slain more than three decades ago may never learn who killed them after a judge yesterday tossed out evidence implicating reputed mobster Stephen ``The Rifleman'' Flemmi.

In a 65-page ruling, U.S. District Court Judge Mark Wolf said federal prosecutors misused the grand jury when it charged Flemmi and New England Mafia boss Francis Salemme with the 1967 murders of Walter, Edward and William Bennett.

As a result, the government's two key witnesses will be barred from testifying about the murders, Wolf wrote.

``These people murdered, they plundered the city of Boston, which I loved,'' said Billy Bennett, whose father, William, was slain after he vowed to avenge his two brothers' deaths.

``And they were helped by the federal government on top of that. It's frustrating as hell,'' Bennett said.

Billy believes his father figured out Flemmi and Salemme were the killers, but made the mistake of telling FBI agents, who in turn tipped Flemmi, a longtime FBI informant.

The 56-year-old bartender was found in a snowbank, shot and beaten, two days before Christmas in 1967. His two brothers, Edward ``Wimpy,'' 47, and Walter, 55, vanished earlier that year and their bodies were never found - allegedly victims of an underworld turf war.

Flemmi's lawyer, Kenneth Fishman, had asked Wolf to throw out the entire five-year-old racketeering case because of alleged grand jury abuse, but Wolf declined.

``We're pleased he didn't dismiss the indictment,'' said United States Attorney Donald Stern. ``We're disappointed he's precluded some of the evidence.

``We charged the murders believing they were appropriate to be part of this indictment and we still believe that,'' said Stern, who is mulling an appeal.

Fishman called Wolf's ruling ``significant.''

``We think abuse of the process was egregious,'' he said. ``The government has taken the attitude that the grand jury is ours and we can do whatever we want with it. They're rarely called on the carpet to justify their conduct before the grand jury.

``Fortunately in this case, their misuse was discovered,'' he added.

Wolf ruled prosecutors were wrong when on May 21, 1996, they added four additional counts to the RICO charges pending against Flemmi and Salemme.

These counts accused them of killing the Bennett brothers, as well as Richard Grasso, an associate from Connecticut.

By doing that, Wolf concluded, prosecutors violated a rule barring them from using a grand jury to bolster charges already pending against a defendant.

A grand jury can investigate new crimes or add new defendants to existing charges, he wrote.

Wolf found that prosecutors were not probing new crimes, but simply beefing up the existing racketeering case. Their actions would have been acceptable, Wolf wrote, had they charged Flemmi specifically with murder. But in 1967, when the victims were killed, murder was not a federal offense. The murders instead were charged as racketeering acts.

To help make their case, prosecutors gave immunity to two key witnesses - Hugh Shields, who worked for Flemmi as an alleged enforcer and another as yet unnamed witness - and forced them to tell what they knew to the grand jury. Because their testimony was wrongfully obtained, Wolf said, neither Shields nor John Doe 2 will be allowed to testify when Flemmi's case finally goes to trial.

Salemme has already pleaded guilty to racketeering and is serving an 11-year sentence.

Flemmi could be charged in state court with the murders, but James Borghesani, spokesman for Suffolk County District Attorney Ralph C. Martin II, declined to say whether that was likely. ``This decision does not necessarily mean that Flemmi, in effect, is being allowed to `get away with murder' if he participated in the killings of the Bennett brothers and Grasso,'' wrote Wolf, who said the charges could be considered at sentencing if Flemmi is convicted of racketeering.

Wolf is still considering whether to throw out other key wiretap evidence. He has already thrown out some, but prosecutors appealed. They argued the case before the U.S. Appeals Court in June, which has yet to make a ruling.

Bennett trio met demise over course of one year

Within a single year, all the Bennett men were gone.

First, Edward ``Wimpy'' Bennett disappeared in January 1967. Then three months later his brother, Walter, also vanished.

In December, the third Bennett, William, turned up dead in a snowbank.

In 1969, state prosecutors tried to pin William's murder on reputed mobsters Francis Salemme and Stephen Flemmi, but the charges were dropped.

The murders went unsolved for decades until 1996, when federal prosecutors again charged Salemme and Flemmi with the crimes.

In their indictment, they referred vaguely to a ``gang war'' on the streets of Boston but left others to speculate on what really happened to the Bennetts, notorious underworld figures. ``From what I've seen more than anything, Flemmi and Salemme were trying to take over all my family's businesses,'' said Billy Bennett Jr., William's son.

William was a bartender in Walter Bennett's bar, an innocent, his son said, who ``wasn't a strong arm, loan shark or bookie.''

Some believe Wimpy and Walter were plotting against top Patriarca family wiseguy Ilario ``Larry'' Zannino and muscling into mafia turf.

Joe Barboza, a Mafia hitman-turned-informant who wrote a book about his exploits, said Wimpy was shot, Walter was strangled and William was shot and thrown from a car.

Billy Bennett said his father knew Flemmi and Salemme were the ones when they came to him - after Walter and Wimpy had disappeared - looking to take over the bar. ``He (William) was running the bar and trying to keep it afloat,'' he said. ``When they said they wanted the bar, he immediately knew who did his brothers.''

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