Justice or payback?

Are judges getting even with O'Brien?

For some lawmakers on Beacon Hill, the federal trial of former Probation commissioner John O’Brien and two of his top aides is not what it appears. For them, the case is not about mail fraud, racketeering, or bribery, but about payback.

As these lawmakers see it, O’Brien is facing prosecution largely because the Legislature gave him control of hiring at Probation in 2001 and took it away from the state’s judges. To get even, the lawmakers say, the judges blew the whistle on O’Brien’s patronage hiring scheme in 2010, which eventually led to the current trial.

Evidence for this payback theory is scant and circumstantial, but there are some indications that O’Brien’s defense team may pursue the issue. The attorneys are clearly trying to show that the patronage practices of O’Brien were no different from the practices of the judges that preceded him.

Francis Wall, a former top aide to O’Brien, testified on Thursday that patronage hiring under O’Brien after 2001 was little different from patronage hiring by judges at individual courts prior to 2001. In both cases, lawmakers allegedly steered state money to officials amenable to hiring people recommended by those lawmakers. After 2001, the money went to O’Brien’s Probation Department. Before 2001, the money went to individual courts where judges were open to patronage hires.

James Dolan, a former Superior Court judge in New Bedford, often railed against the Legislature for meddling with the courts. Wall testified this week that Dolan’s refusal to go along with the hiring of four people recommended for probation jobs by Sen. Mark Montigny may have prompted former House speaker Tom Finneran to take hiring decisions out of the hands of judges and give it to O’Brien.

In a report he wrote in 2002 for the Pioneer Institute, Dolan documented how the Legislature regularly steered dollars and jobs to courts where they weren’t needed because those courts were amenable to patronage hires. Between 1998 and 2001, he wrote, the Legislature provided funds for 261 probation jobs that the courts never requested.

“This confirms a fundamental conflict of interest in the Legislature’s control over specific personnel allocations through its use of the line-item budget,” Dolan wrote. “The pressure to secure good jobs for supporters prompts the creation of positions that court administrators have not requested. The need for direct access to these jobs overrides any serious consideration of their necessity, allowing patronage to trump planning.”

Once the Legislature took the power to appoint probation officers away from court judges and gave it to O’Brien, the state’s judges watched as O’Brien allegedly used that hiring power to curry favor with state lawmakers, trading jobs for budget increases and favorable legislation.

The judges got their chance to turn the tables on O’Brien when the Boston Globe Spotlight Team ran a series of articles in May 2010 on the commissioner’s patronage practices. The two-part Spotlight series began on a Sunday and by Monday morning the Supreme Judicial Court had suspended O’Brien, retained special counsel Paul Ware, given Ware subpoena power, and set him loose on O’Brien’s empire.

The resulting Ware report painted a devastating portrait of patronage at the Probation Department and led to a federal investigation, which led to the trial of O’Brien, Tavares, and Burke. None of the lawmakers who orchestrated O’Brien’s patronage system have been charged with any wrongdoing.