Despite concerns, Young keeps most charges

Jurors' perception of Mulligan could be key

US District Court Judge William Young on Monday slightly narrowed the charges against former Probation commissioner John O’Brien and two of his top aides but agreed to send the case to the jury pretty much as prosecutors wanted.

O’Brien and former aides Elizabeth Tavares and William Burke III are charged with running a rigged hiring scheme at the Probation Department that used patronage jobs to leverage greater funding and power for the agency from the Legislature. Prosecutors allege the defendants represented that their hiring complied with Trial Court procedures when in fact jobs were being steered to politically connected applicants. The three defendants are charged with mail fraud, conspiracy, racketeering, and bribery.

Throughout the lengthy trial, Young has continuously raised concerns about whether prosecutors had enough evidence to make their charges, particularly those related to bribery, stick. While he narrowed the reach of those charges to only a select group of hires on Monday, he nevertheless allowed the bulk of them to go before the jury. As they left court, the federal prosecutors were smiling and seemed pleased with the outcome, while defense attorneys downplayed the judge’s rulings and said the outcome was not unexpected.

The Monday court session was a chance for Young and the attorneys to work out the logistics of Tuesday’s court proceedings, where Young will offer instructions to the jury on how to deliberate and prosecutors and defense attorneys will make their closing arguments. Young made a number of key rulings which are likely to find their way into his instructions to the jury.

For example, Young said he will instruct the jury that recommending people for state jobs is not a crime, nor is keeping lists of people seeking state jobs and their political sponsors. But Young said he will tell the jury that passing names of preferred job applicants to interview panels is questionable. He said he would describe as highly questionable the passing of job applicants by an official at Probation to a subordinate. Young originally planned to call such actions improper, but changed his mind and decided to go with questionable in the afternoon.

Defense attorneys have argued that many of the alleged patronage hires were qualified and therefore should not be viewed negatively. Young said he would instruct the jury not to dwell on the qualifications of job applicants because he did not want the jury to become a “super personnel board.” He said O’Brien was entitled to pick who he wants for a job as long as the selection process did not run counter to the Trial Court’s hiring manual.

The jury’s perception of Robert Mulligan, the former chief justice for administration and management, could be critical to the outcome of the trial. Prosecutors have argued that O’Brien essentially duped Mulligan into thinking people were being hired in compliance with Trial Court procedures when in fact they weren’t. Defense attorneys have argued that Mulligan knew what was going on and practiced patronage himself with the hiring of court officers.

Assistant US Attorney Fred Wyshak argued that Mulligan wasn’t the only one to rely on the claims of hiring legitimacy made by Probation officials. He said those who lost out in job competitions and the Trial Court as a whole also suffered. But Judge Young did not agree.

“Someone has to act on misrepresentations and you said it was Mulligan,” said Young. “If he knew what was going on [at Probation], there is no fraud.”

Attorneys for both Tavares and Burke sought to narrow the charges against their clients by arguing that their roles in the alleged conspiracy were narrow and, in Burke’s case, largely indirect. But Young ruled that the jury will have to decide whether Tavares aided and abetted the hiring scheme and whether Burke, a probation official from western Massachusetts, was a key participant.

Still, Young said prosecutors will have to convince jurors that Tavares not only played a role in the hiring scheme but participated with the same criminal intent as O’Brien allegedly did. There has been little evidence introduced at trial about Tavares’s intent.

The whole notion of bribery in the case is confusing and Young indicated he would try to clarify it for jurors. For example, he said he will explain that prosecutors are not alleging that Rep. Robert DeLeo, who at the time was the chairman of the Ways and Means Committee and is now the House Speaker, was bribed but that DeLeo worked in concern with O’Brien to bribe state reps with jobs in return for their support in his bid to become speaker.

O’Brien defense attorney William Fick complained that Judge Young seemed to be offering prosecutors wide latitude on the bribery charges. He said former Gov. William Weld convinced former Senate President William Bulger to support a tax cut by steering budget money to several causes favored by Bulger. “Is that a bribe?” he asked.

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Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

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Paul McMorrow

Associate Editor, CommonWealth

About Paul McMorrow

Paul McMorrow comes to CommonWealth from Banker & Tradesman, where he covered commercial real estate and development. He previously worked as a contributing editor to Boston magazine, where he covered local politics in print and online. He got his start at the Weekly Dig, where he worked as a staff writer, and later news and features editor. Paul writes a frequent column about real estate for the Boston Globe’s Op-Ed page, and is a regular contributor to BeerAdvocate magazine. His work has been recognized by the City and Regional Magazine Association, the New England Press Association, and the Association of Alternative Newsweeklies. He is a Boston University graduate and a lifelong New Englander.

About Paul McMorrow

Paul McMorrow comes to CommonWealth from Banker & Tradesman, where he covered commercial real estate and development. He previously worked as a contributing editor to Boston magazine, where he covered local politics in print and online. He got his start at the Weekly Dig, where he worked as a staff writer, and later news and features editor. Paul writes a frequent column about real estate for the Boston Globe’s Op-Ed page, and is a regular contributor to BeerAdvocate magazine. His work has been recognized by the City and Regional Magazine Association, the New England Press Association, and the Association of Alternative Newsweeklies. He is a Boston University graduate and a lifelong New Englander.

Young said there was a big difference between two elected officials horse-trading over state policy and the hiring practices of O’Brien at Probation.

Young also promised attorneys that his instructions to the jury would dissuade them from finding guilt based on their distaste for patronage or nepotism. “I don’t want them saying they’re all bad, patronage is bad, let’s send a message that patronage is bad,” Young said.