[Originally published in Devereux Newsletter No. 48, April 8, 2002]
The Federal Bureau of Investigation does not get involved in many local homicide investigations, but it certainly did so when Phoenix journalist Don Bolles was the victim of a deadly car-bombing on June 2, 1976.
And it did so for several reasons.
First, it was asked by the Phoenix Police Department (Phoenix PD) to pursue certain out-of-state leads, contacts, and interviews in the case.
Second, there was the organized crime angle.
Though curiously not a matter of much interest to Phoenix PD in the ensuing investigation, Bolles’ own dying words had included, “Adamson, Emprise, the Mafia.”
ADAMSON, EMPRISE, AND BOLLES
John Harvey Adamson was the local hoodlum who had been enlisted to lure Bolles to the hotel parking lot in mid-town Phoenix where the bomb was detonated.
Emprise Corp., in turn, was the Buffalo, New York, conglomerate already suffering from one mob-related conviction—which then owned all six Arizona dog tracks in partnership with Funks Greyhound Racing Circuit of Phoenix. Emprise Corp. already was under nationwide scrutiny for just such ties by the FBI.
Bolles had spent many years as an investigative reporter trying to find what he strongly suspected was an organized crime connection in Arizona’s dog track operations.
Third, there quickly was talk of possible corruption among high-level public officials in the Bolles conspiracy as well.
An offer of supposed “dirt” on then U.S. Congressman Sam Steiger was part of the bait used to entice Bolles to the fatal location.
It should be emphasized that Bolles was dubious about the veracity of any such information. Bolles and Steiger were friends, having gone through some very nasty litigation together with Emprise Corp. and the Funks over 1970-73. Like Bolles, Steiger also suspected Emprise Corp. of mob ties and actively had used his position in Washington, D.C., to encourage federal law enforcement attention.
Then there was U.S. Senator Barry Goldwater, whose name came up in less than flattering ways in rumored links to Adamson and corrupt Phoenix attorney Neal T. Roberts, a close associate of both Adamson and Joseph Patrick, a one-time member of Goldwater’s staff.
It stood to reason, therefore, that anyone charged in the Bolles case would want to know what the FBI had learned in the course of its investigation, whether indirectly in the form of pre-trial “discovery” of information passed along by the FBI to local police and prosecutors, or directly through a defense subpoena of FBI records in the case.
ADAMSON, FIRST DEFENDANT
This was exactly the situation confronting the FBI by the late summer of 1976 when Adamson—the first defendant before his eventual plea deal—was looking at an initial fall trial date.
Documents obtained from the FBI over the years through the Freedom of Information Act provide good background.
The sweeping subpoena by Adamson’s attorneys for all FBI records regarding the Bolles homicide produced a response reaching all the way to then U.S. Attorney General Edward H. Levi for approval, which set the standard for FBI disclosure to all subsequent defendants in the case.
To quote from an FBI document of that period, “The Code of Federal Regulations provides that if the (FBI) Director wishes to withhold documents covered by such a demand, he must refer the demand to the Attorney General for a final decision.”
Accordingly, then FBI Director Clarence M. Kelley dispatched a memorandum to Attorney General Levi on September 28, 1976, with his own decision, in the face of a defense subpoena, “to order the release of those documents from the Phoenix (FBI) investigative file concerning the Bolles matter…which previously have been given to the (Phoenix) Police Department. Prior to release, appropriate excisions will be made to delete administrative markings, the identities of informants and sources, and the names and identifying data of individuals who furnished information pursuant to a specific promise of confidentiality.”
In the memorandum, Kelley acknowledged to Levi that “numerous other documents” existed in the FBI case file, which were not being provided to Phoenix PD, including “internal memoranda, inter-office communications, teletypes setting forth lead information and. instructions, results of file interviews, and other matters relating to administration of this case. Further, some of these documents disclose the previous relationship of a former informant with the FBI. This informant has been voluntarily furnishing information to us as well as to the Phoenix Police Department on the Bolles investigation.”
In reference to the defense subpoena, Kelley then stressed, “I am not authorizing disclosure of the documents described above which were not previously furnished to the PhOenix Police Department.”
On September 30, 1976, U.S. Assistant Attorney General Richard L.
Thornburgh also sent a memorandum to Levi endorsing Kelley’s position.
In correspondence of October 1, 1976, Attorney General Levi officially added his own necessary support of Kelley as well.
Any release of FBI documents beyond those given to the local police, Levi agreed, “would be detrimental to the interests of the United States.”
There can be no doubt that one of the FBI’s principal concerns was “political,” a desire to avoid the flak that would ensue if embarrassing FBI reports involving such prominent people as Senator Goldwater somehow found their way into the public domain.
FBI documents are sprinkled with acknowledgements of such “sensitive” materials, urging extreme caution in their distribution.
But the FBI still could claim that it at least was being even-handed, that it was contributing to an absolutely level playing field between police and prosecutors on one side and defense attorneys on the other.
However limited, the FBI nevertheless was reportedly providing copies of the very same bureau materials to both sides in the case.
What could be fairer than that? (Actually, depending on the nature of information withheld, a whole lot could be fairer, but to this juncture let’s still try to give the FBI the benefit of the doubt.)
FAIRNESS IN LEGAL CASES
“Fairness” clearly is at the heart of the duty to disclose exculpatory evidence to a defendant in a criminal proceeding:
In the landmark Brady v. Maryland, the U.S. Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
But, as assessed in Moore’s Federal Practice, that Supreme Court ruling “did not create a constitutional right to broad pre-trial discovery in a criminal case grounded in either a defendant’s due process or confrontation clause rights. Rather, the general focus…is whether the defendant has received a ‘fundamentally fair trial.’ Indeed, the Supreme Court has subsequently characterized [it] as a rule of fairness rather than a rule of discovery.”
In McDowell v. Dixon, moreover, it was held that the “rationale” of the ruling in Brady v. Maryland is “avoidance of an unfair trial to the accused,” again per Moore’s Federal Practice.
And in W.S. v. Bagley, it similarly was held that the “issue” in Brady v. Maryland “does not involve ‘the scope of discovery’ but rather ‘the defendant’s right to a fair trial,'” according to the same legal authority.
Yet, other FBI documents just obtained most recently, through the Freedom of Information Act, now make it all too clear that the FBI’s approach to discovery in the Bolles proceeding actually was anything but fair.
The approach was, in reality, deliberately and deceptively tilted in the direction of police and prosecution. (This is not to imply that the FBI was alone in such regard. The range of “discovery” games in the Bolles case played by Phoenix PD and the Arizona AG’s office also was extraordinary and worthy of review in a future newsletter.)
As a reminder, Arizona Deputy Attorney General William J. Schafer had been loaned to the Maricopa County Attorney’s office in the summer of 1976 to serve as “special prosecutor” in the Bolles case. Then, after Arizona Attorney General Bruce E. Babbitt took formal jurisdiction in the proceeding away from Maricopa County Attorney Donald W. Harris in the early fall of 1976, Schafer stayed on as chief prosecutor for the AG’s office.
Schafer subsequently became a Maricopa County Superior Court Judge, finally retiring in 2001.
An FBI “Informative Note” dated August 10, 1976, now has turned up. It reads, “PX Office [Phoenix FBI office] will make excised copies of informant’s reports available at PX Office for review by local prosecutor…No Bureau documents or records will be given out to the prosecutor.”
SECRET READING FILE
In other words, a secret reading file of information from a confidential informant was established for Schafer at the FBI’s Phoenix office, the same confidential informant about whom Kelley, Thornburgh, and Levi later would express such concern.
And since Schafer would not be taking any actual copies of such documents or records away with him, the FBI later would feel no obligation to provide such information to the defense. As conveniently practiced by the FBI, the “rule of fairness” regarding discovery in a criminal proceeding would only pertain to the sharing of information in hard-copy form.
Realizing that it eventually might be violating the spirit if not the letter of the law concerning discovery, the Phoenix FBI hierarchy also attempted to cover its butt by running this covert practice past bureau attorneys.
The “Informative Note” of August 10, 1976, goes on to read, “This matter has been coordinated with Legal Counsel Division and there appears to be no objection to handling this matter in this fashion.”
It also is clear that the decision by Phoenix FBI to establish a secret reading file for prosecutor Schafer was tacitly approved at the very highest level of the bureau.
Concurrently, on August 10, 1976, an explanatory FBI communication was sent by teletype from the Phoenix FBI office to FBI Director Kelley marked “URGENT.”
The latter reveals that on August 10, 1976, Schafer himself asked the Phoenix FBI for a “detailed briefing” of whatever the bureau had learned from a confidential informant regarding the Bolles case.
It indicates that Schafer’s request was approved and that such briefings were scheduled to begin at “9:00 A.M., August 11, 1976,” during which the prosecutor “will be fully briefed and will be allowed to read excised copies” of FBI reports…”No copies [of] these reports will be retained by Schafer.”
Another Phoenix FBI internal memorandum of August 24, 1976, acknowledges that Schafer visited Phoenix FBI offices once more on August 16, 1976, “to allow Mr. Schafer again to review the excised copies of informant reports.” At that time, the memorandum warns, Schafer speculated that it might prove to be unavoidable for him to have to identify this informant as a source—along with his information—to defense attorneys.
If so, according to the bureau memorandum, Schafer “will take every precaution necessary to preclude questioning of source by defense attorneys on the matter of any prior association with the FBI.”
In a Phoenix FBI “AIRTEL” of September 13, 1976, to FBI Director Kelley, it was confirmed as well that prosecutor Schafer “has on two occasions in August 1976 read excised copies of the information” provided by the confidential informant.
But, as already reflected in U.S. Attorney General Levi’s ruling of October 1, 1976, Schafer evidently was dissuaded from ever making any disclosure about the confidential informant to the defense.
As this newsletter was being finalized, Schafer could not be located for comment.
The recently obtained FBI documents also reveal that Phoenix PD was secretly accorded special access.
The same Phoenix FBI “AIRTEL” of September 13, 1976, for example, acknowledges that “the PXPD [Phoenix PD] has been furnished verbal reports of all other pertinent information” from the FBI’s Bolles case file, “including the substance of all information” from the crucial confidential informant.
As a result, police and prosecution were free to take notes and to pick and choose. They could follow-up for independent development all such leads that were useful to their case. At the same time, they simply could ignore any exculpatory information, hopeful that defendants would never learn of its existence.
TWO REMAINING QUESTIONS
I’m now left with two obvious questions.
First Question: What did the confidential informant have to say, with what bearing on the Bolles case if it had been shared fully with defense attorneys? While presently still uncertain, the possibilities nevertheless are intriguing.
It must be admitted that, on the basis of heavily redacted FBI documents obtained to date through the Freedom of Information Act, not very much has been disclosed about the identity of the mysterious confidential informant.
But a communication from the Phoenix FBI office to FBI Director Kelley dated June 25, 1976, does offer a few clues.
It reveals that Phoenix PD homicide detectives “briefly interviewed” this source on June 14, 1976, reportedly sensing in the process that he might already have been an FBI informant. When that prior relationship was verified by the FBI, the bureau’s instructions were for Phoenix PD to keep such a connection confidential and “to avoid further contact with source by police.”
The informant “was then instructed to continue contacts with suspects” and to report to the FBI; with any information subsequently developed by the bureau to be “furnished to Phoenix PD on timely basis.”
While the “suspects” are not identified in unredacted portions of that communication’s text, tantalizingly, the names John Harvey Adamson and Neal Taylor Roberts both appear in its caption.
There also is a teletype marked “PRIORITY” from FBI Director Kelley on August 16, 1976, in which he reminds the bureau’s Phoenix office that the confidential source “previously furnished us information concerning matters of organized crime.”
Given the FBI’s nationwide interest in Emprise Corp. and its evident mob links in the 1970s, the prospect of a confidential informant recruited or placed in and around Funks Greyhound Racing Circuit, Emprise’s Phoenix-based partners in Arizona, already has been raised in Newsletter No. 47 (issued February 1, 2002) [the previous blog post].
Since early in my stint as an investigative reporter for Scottsdale Progress beginning in 1979, my analysis of the evidence has been that greyhound track executive Bradley J. Funk and attorney Neal Roberts, old drinking buddies since their days in high school together, were the key figures in the Bolles murder conspiracy, with Adamson as their errand boy.
Funk died of a heart attack in 1989, with Roberts dying a decade later of acute alcoholism and multiple sclerosis in 1999.
Piecing all of this information together, it certainly is possible that the FBI’s undisclosed confidential informant was a person operating in some of the same business and/or social circles as Funk, Roberts, and Adamson.
I can relate one other curious anecdote in that regard.
Back in 1980, shortly after Max Dunlap’s initial conviction in the Bolles case was overturned by the Arizona Supreme Court, I had an interesting conversation with Dunlap’s attorney, Phoenix lawyer Murray Miller.
My notes reflect that Miller told me he had been contacted in the aftermath of the court’s ruling by someone who described himself as having been a confidential informant for the FBI. The person reportedly had been situated right in the middle of the guys who killed Bolles and knew that Dunlap was innocent, Miller said.
If Dunlap ever were to be tried again for Bolles’ murder, the attorney added, that person would feel obligated to come forward and to testify in Dunlap’s behalf.
Since Dunlap finally was facing a second trial in 1993 and on the way to being convicted again, I asked Miller if the former FBI informant was going to be on his witness list. The attorney replied that he had no recollection of any such person.
When I tried to jog Miller’s memory again in a re-interview late last week, he still was unable to recall the 1980 contact.
One of us is mistaken.
Either I seriously misunderstood what Miller told me in 1980, or over the intervening years, amid the mass of details facing him in subsequent legal cases, he completely forgot about it.
Second question: This is one to which I regrettably have no answers at all, just suspicions.
Was the FBI’s documented conduct in keeping information from the defense in Arizona’s Bolles case unique?
Or has the FBI—through such mechanisms as secret reading files and discreet verbal briefings for local prosecution and police—routinely violated the “rule of fairness” for years, withholding information from defense attorneys in numerous other criminal proceedings all across the country?
NEXT: A surprising Lake Havasu connection to the Bolles murder.
Copyright © 2012 Don Devereux, All Rights Reserved
Journalists, historians, teachers, and students are free to quote from any of this material in writings of their own, provided that they do so with proper attribution and acknowledgement of applicable copyrights.