O’Brien defense rests without a word

Attorneys for all three defendants gamble prosecutors did not make their case

Defense attorneys for former Probation commissioner John O’Brien and two of his top aides let testimony in the federal corruption trial end Friday without calling a single witness to the stand.

After nearly 40 days of often contentious and mind-numbing testimony over more than nine weeks, prosecutors in the federal corruption trial of O’Brien and his two co-defendants, Elizabeth Tavares and Edward Burke III, rested their case. The lead attorney for each defendant then informed US District Court Judge William Young one by one that they would not offer any witnesses or evidence, apparently letting their often withering cross-examination of witnesses serve as the defense, confident the government didn’t fulfill its burden of “proof beyond a reasonable doubt.”

As Young was letting the 14 jurors, including two alternates, go for a long weekend before returning on Tuesday morning for his instructions and closing arguments prior to deliberations, he offered a solemn observation: “In the most important part [of the trial], you will be asked to decide the case.”

On Monday, defense attorneys are planning to make motions for directed verdicts of acquittal on all counts of racketeering, mail fraud, bribery and conspiracy and to argue to exclude some of the evidence and testimony that was presented during the trial. While Young, who dismissed a defense motion for a mistrial Friday, has said at least some of the charges had enough evidence to be presented to the jury, he has also indicated throughout the trial he did not think that prosecutors were making their case on the bribery charges or on conspiracy or racketeering, at least in relation to Tavares and Burke.

It’s not unusual for defendants to not take the stand, avoiding the chance for prosecutors to force them to say something that could tip a jury toward a guilty verdict. And it’s also not unheard of for defense attorneys to opt against putting on their own case. But given the volume of testimony offered by prosecution witnesses as well as the more than 200 documents introduced as exhibits, some hundreds of pages long, it’s a roll of the dice to let jurors make their decisions solely on what was presented from one side.

In addition, the last several weeks focused on the prosecution’s claim that O’Brien gave Rep. Robert DeLeo 10 jobs to hand out to House members to try to garner support for his run for speaker, arrangements that they termed a “quid pro quo” that proved their charge of bribery. Prosecutors called current and former representatives to the stand to testify they received calls from DeLeo or his top aide, Leonard Mirasolo, offering them jobs, which they referred to friends or associates who were hired without interviews, sometimes the same day they applied. The lawmakers also testified they voted for DeLeo as speaker, though all said there was no connection between the two actions.

In the indictment, prosecutors alleged Mirasolo’s son Brian, who is also DeLeo’s godson, was hired as a probation officer after being referred by DeLeo.

John Amabile, one of Burke’s two attorneys, told Young after jurors were dismissed that he had planned on calling a couple witnesses to rebut the allegations of Brian Mirasolo’s hiring.

“We were prepared to call two Superior Court judges to talk about the excellent performance of Brian Mirasolo,” said Amabile. “I just want to put that on the record.” Amabile did not explain why he opted against calling the judges and what he meant by “on the record,” since jurors will never hear that assertion.

The mood of the attorneys was one of relief, with Stellio Sinnis, one of O’Brien’s court-appointed federal defenders, joking with reporters, “Sorry we didn’t put DeLeo on for you.” But the attorneys said they did not feel the need to offer witnesses to rebut charges they thought did not show their clients engaged in anything more than the time-honored practice of patronage.

Young said his charge to the jury would take about 90 minutes, and he said each side would have 90 minutes for their closings, with the three sets of defense attorneys carving up their hour and a half among them. Assistant US Attorney Fred Wyshak asked Young for more time, pleading that the enormous volumes of the case could not be succinctly packaged in that short a time.

“We need more than an hour and a half to sum up,” Wyshak said. “It’s just not possible to make a comprehensive presentation to the jury.”

Meet the Author

Jack Sullivan

Senior Investigative Reporter, CommonWealth

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

Young said he was “skeptical” about adding more time, indicating if he did, it would likely make the closings run over two days, which he said was unacceptable.

“You can fill a glass up with water, but once you fill it up you can add more water but it doesn’t give you anything,” Young said.