Is it bribery absent a willing recipient?
O'Brien indictment doesn't charge his targets
LOST IN THE OVERWHELMING COVERAGE of last week’s Boston Marathon bombings was the acquittal of former Probation Commissioner John J. O’Brien on all state corruption charges, a statement by the jury that says jobs for favors and vice versa is the way things work on Beacon Hill.
It would be safe to assume that message wasn’t lost on US Attorney Carmen Ortiz, whose office filed a superseding indictment in federal court against O’Brien and two of his lieutenants, adding 17 new counts of bribery to the original RICO charges that were brought last year. Not much in the indictment is new, with most of the allegations having been aired in the Ware Report and the Boston Globe.
What is surprising is that O’Brien and his lieutenants are being charged with bribing state officials but those state officials are not being charged with accepting the bribes. The indictment doesn’t name the state officials, but makes them easily identifiable through job descriptions, raising the question: Can you prove bribery, as opposed to attempted bribery, without presenting willing recipients? And if those described in the indictment are not charged, how fair was it to name them in the indictment?
Rosanna Cavallaro, a professor of criminal law and evidence at Suffolk Law School, says prosecutors have wide latitude in deciding whom to charge. “You don’t have to charge both sides,” she said. “Not necessarily this case in particular, but the government has to determine who’s the person who’s really the mastermind, who’s the person that bears the most responsibility.”
But the way in which legislators are described makes one wonder why they escaped the long arm of the law if they, in fact, did what they are alleged to have done. The indictment, handed up Wednesday by a grand jury, includes some damning statements about some of the more powerful actors at the State House, including Senate President Therese Murray, House Speaker Robert DeLeo, Lt. Gov. Timothy Murray, and nearly two dozen other lawmakers.
Among the details in the indictments are allegations that DeLeo was handed 20 openings for him and his House allies to fill in a way that circumvented the hiring procedures at a sex offender monitoring center in Clinton. The indictment says O’Brien used the jobs in an effort to help DeLeo garner support in his pursuit of the Speaker’s post, which in turn would help O’Brien cement his position and his agency’s funding through legislation. In fact, according to the indictment, O’Brien and DeLeo met in 2007 to fashion a measure that would further remove the probation department from scrutiny by the Chief Justice of Administration and Management of the Trial Court.
The indictment also says Senate President Murray successfully championed several candidates for probation positions, including the son of a politically connected South Shore judge. Lt. Gov. Murray was mentioned for allegedly sponsoring at least one successful candidate.
Yet for all that detail, only O’Brien and former deputies Elizabeth Tavares and William Burke have been charged with conspiracy and bribery. “Perhaps more charges are coming,” says criminal defense attorney Joshua Solomon, a partner with the firm Pollack Solomon Duffy, who has represented defendants in federal court. “The feds don’t always charge defendants at the same time. They may be trying to turn someone into a cooperator. The evidence is different for each side. These types of crimes require intent, a certain kind of mindset. Perhaps they can’t prove mindset.”
A spokesman for the Senate president issued a blistering statement attacking both the indictment and the Globe, which first reported the indictments this morning. “Legislators have not been charged with anything, especially bribery which the Boston Globe states,” says the statement from David Falcone. “The indictment, when read properly, states that the probation department intended to influence legislators. Nothing in the indictment says the Senate President was influenced or had any knowledge of an alleged probation department scheme. . . The Boston Globe and the US Attorney should clarify the facts immediately before the names and reputations of good people are further damaged.”
DeLeo also defended himself. “The superseding indictment appears to be a more detailed repetition of what has already been charged,” he says in his statement. “It is clear that I am not a party to the indictment, but I want to state emphatically: I only recommended job applicants who were qualified. I never gave or received any benefits from those recommendations, and I never traded jobs for votes. There is no one who could honestly say otherwise.”
Ortiz’s office did not respond to several requests for comment. Cavallaro says prosecutors have their reasons for naming — or not naming — someone in an indictment, though she admits it can carry a veneer of unfairness. “This isn’t so much a law question as much as a gut question,” she says. Prosecutors “need to allege the conduct with enough specificity so [defendants] can prepare a defense. But there’s a character assassination aspect to it as well. You want to say ‘Put your money where your mouth is; go ahead and try to prove the charges.’ In terms of public interest, in terms of transparency, we want that to be as clear as possible [with indictments] but don’t smear someone.”Solomon says Ortiz is under fire for some of her recent decisions, including the case against MIT hacker Aaron Swartz who committed suicide last month while awaiting trial. “Prosecutors can do a lot of harm to citizens, not only to those named as a defendant but by dragging their names through a public trial without charges,” Solomon says. “People can be harmed and are.”
But while Deleo, Murray, and others wring their hands over their treatment from the US Attorney, they might want to remember one thing about the criminal justice system: It’s not all that different from Beacon Hill. Just as jobs in return for favors are commonplace on Beacon Hill, indictments that cast a wide net are just the way things work in federal court.