The defense

“The fraud is the government’s case”

Former Probation commissioner John O’Brien (right) with his attorneys Stellio Sinnis (center) and William Fick.

Defense attorneys for former Probation Department officials John O’Brien, Elizabeth Tavares and William Burke III devoted much of their closing arguments in their federal corruption trial on Tuesday to playing offense, assailing Robert Mulligan, the former head of the Massachusetts Trial Court, and US Attorney Carmen Ortiz.

Attorneys for O’Brien, Tavares, and Burke took varying paths in trying to knock down the specific charges against their clients, who stand accused of running the Probation Department like a criminal enterprise. But all three were united in the venom they poured on Mulligan, the government’s key witness, and Ortiz, the state’s top federal prosecutor.

John Amabile, Burke’s attorney, called the Probation case “a gross over-abuse of federal power” and “a political witch hunt.” He noted that Burke’s daughter, Mindy, was sitting in the front row of the courtroom, after having been kept out of court for the duration of the 10-week trial, because prosecutors had said they’d planned to call her as a witness. Mindy Burke was never called as a witness, although her name was repeatedly thrown around the courtroom. “It shows you the character of this prosecution,” Amabile said. “It’s a mudslinging operation – throw everything but the kitchen sink against the defense, and see if you can fool the jury.”

“There’s something disturbingly cynical about this prosecution,” argued Stellio Sinnis, O’Brien’s attorney. “Stop and take a step back and think about what this criminal prosecution is. They’re asking you to convict Liz, Billy, and Jack because they hired qualified people. They want you to convict these people and destroy their lives because they hired qualified people. That notion should shock you.”

Federal prosecutors have alleged that O’Brien, Tavares, and Burke orchestrated an elaborate hiring fraud from inside the Probation Department. They’ve said O’Brien, Tavares, and Burke maintained a patronage farm that traded jobs to legislators in return for fattened budgets and legislative clout. They’ve alleged the three defendants committed federal crimes by papering over their patronage operation, and maintaining a façade of a merit-based hiring system. O’Brien, the former Probation Department commissioner, and Tavares, his deputy, both face federal mail fraud, racketeering and conspiracy charges. Burke is charged with racketeering conspiracy.

Tuesday’s closing arguments marked the end of the legal wrangling in the probation trial, which began in the beginning of May. Attorneys for each of the three defendants rested their cases last week, without calling any witnesses of their own. So Tuesday’s closing arguments marked their first chance since the trial began to make direct appeals to the jury. Jury deliberations will commence Wednesday morning.

Sinnis, O’Brien’s attorney, made a point to contrast the probation case with recent blockbuster public corruption trials of former House speaker Sal DiMasi, former state senator Dianne Wilkerson, and former Boston city councilor Chuck Turner. O’Brien, Tavares, and Burke “didn’t get one penny,” Sinnis said. “There was zero testimony showing they got bags of cash, or a preacher’s handshake. There wasn’t even a vacation or a golf trip,” Sinnis added, referencing a scandal that helped sink former House speaker Charles Flaherty.

Sinnis tried to create multiple broad-based escape hatches the jury could use to quickly reject all the charges against O’Brien, Tavares, and Burke. Mail fraud charges require prosecutors to prove O’Brien lied when he signed off on his patronage hires. The judge in the case, William Young, told jurors that no fraud occurred if a patronage hire turned out to be the most qualified job candidate. Sinnis argued that the issue of qualifications is loaded with reasonable doubt, because prosecutors never introduced any evidence showing the qualifications of candidates who lost jobs or promotions to alleged patronage hires.

“If things are left unexplained, it’s the government’s fault, and what’s unexplained is whether these other people were qualified,” Sinnis argued. “You don’t have any evidence. You know nothing about these people. Nothing. After all this time, you don’t even know what ‘most qualified’ means. The question is unanswerable.”

The prosecution’s case also hinges on Robert Mulligan, the former chief justice for administration and management of the Trial Court. Although the Probation Department operated with a good deal of autonomy, Mulligan was technically O’Brien’s boss, and he signed off on all of O’Brien’s hiring decisions. The issue of mail fraud, which undergirds almost all of the prosecution’s case, rests entirely on the issue of whether Mulligan was deceived when O’Brien signed paperwork certifying that his hiring process complied with Trial Court procedures and was based on merit.

Judge Young said Monday that if Mulligan knew O’Brien was catering to legislators’ patronage requests, there was no fraud. So Sinnis, Amabile, and Tavares’s attorney, Brad Bailey, all threw haymakers at Mulligan; all three argued that Mulligan could not have been deceived and defrauded by O’Brien, because he knew hiring on Beacon Hill was steeped in patronage.

Mulligan’s “actions and words tell you he knew exactly what was going on, because he did the exact same thing,” Sinnis argued. Sinnis noted that Mulligan had hired the wife of then-rep. Peter Koutoujian, and had extended a court officer job to the father of Senate President Therese Murray’s chief of staff; at the time, Richard Musiol was in his 60s, and working as a short order cook. He recalled a state judge’s testimony http://www.commonwealthmagazine.org/News-and-Features/Online-exclusives/2014/Spring/068-Probation.aspx#.U8WfdPldVSI” target=”_blank”>cursed out DiMasi for sending over woefully insufficient patronage candidates. He also noted that former Senate president Robert Travaglini routinely sent court officer candidates to Mulligan’s office.

“Why is the Senate president faxing job applications to the Trial Court?” Sinnis asked. “Because that’s how it was done, and if that’s how it was done, there can be no fraud.” He also noted that a prosecution witness, retired Probation official Edward Dalton, met with Mulligan at the judge’s home in 2006, after Mulligan expressed concern about O’Brien’s hiring practices. Sinnis noted that every substantive mail fraud count occurred after Dalton and Mulligan’s April 2006 meeting.

Amabile argued that testimony had shown patronage was marbled throughout judicial hiring, from “judges down to janitors, and it was going on way before John O’Brien ever got near the courthouse.” He called prosecutors’ claim that O’Brien pioneered patronage hiring “absolute horse manure,” and “so untrue it’s not even funny.” Recalling testimony about Mulligan wading into a 2004 Probation patronage battle between judges and O’Brien aides in Boston, Amabile argued, “For Mulligan to get up here and try to claim to you he was defrauded is a joke. He participated in patronage hiring from top to bottom.”

Amabile added, “These government lawyers are trying to perpetrate a fraud on you. The fraud is the government’s case.”

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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.

Bailey, the attorney for Tavares, largely tried to argue that Tavares couldn’t be guilty, because she had no knowledge or desire to advance a corrupt hiring regime. He admitted that while testimony showed Tavares passed the names of some patronage candidates on to Probation officials in a middle round of job interviews, there were other allegedly criminal hires Tavares had no connection to; Bailey also noted that there was no evidence Tavares intervened in the final Probation interview round, where hiring decisions were actually made.

“You can’t aid and abet what you don’t know,” Bailey argued. “You can’t find somebody guilty by osmosis. It doesn’t work that way.”