Q&A on Probation case
A second trial looms but what are the chances of it happening?
The following information was gleaned from discussions with a variety of sources close to the Probation Department case involving former commissioner John O’Brien and his top aides, Elizabeth Tavares and William Burke III. The three defendants were found guilty of various charges last week. Another trial is possible, but the situation is fluid and legal strategies can change quickly.
Q: Are the defendants and the prosecutors headed into court on Wednesday to plan for a second trial?
A: Yes. The case was early on severed into two parts. The first case dealt with mail fraud, conspiracy, and racketeering. The second case focused on bribery.
A: That’s not clear, but it’s unlikely. Our sources tell us the government is unlikely to proceed with the second trial unless an appeal of the guilty verdicts in the first trial is successful. The sources say the government is likely to put the second trial on hold until the appeals are concluded and sentences handed down.
Gerald Leone, a former state and federal prosecutor who is now a partner in the firm of Nixon Peabody, says prosecutors may try to leverage the threat of a second trial into pushing the defendants to drop an appeal.
“That’s a conversation that could occur,” he says.
Q: Why would the government go to trial on bribery charges? Didn’t the jury in the first trial reject the notion that O’Brien, Tavares, and Burke handed out bribes, going with the lesser charge of handing out illegal gratuities?
A: That’s true. But in the first trial the charges of bribery were all part of the racketeering scheme. And the bribery charges in that case related to state bribery law. The second trial would focus on bribery under federal law, which some sources have told us is a bit easier to prove because the quid pro quo doesn’t have to apply to each count, just the overall scheme.
“It is not necessary for the government to prove that the payer intended to induce the official to perform a set number of official acts in return for the payments,” Judge Dennis Saylor, the first judge in the case, wrote, quoting from a federal appeals decision. “The quid pro quo requirement is satisfied so long as the evidence shows a ‘course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor.’”
Q: After the verdicts were handed down last week, why didn’t US Attorney Carmen Ortiz address why no lawmakers were charged as part of the Probation case?
One insider says one of the reasons Ortiz declined to answer questions about why House Speaker Robert DeLeo, who prosecutors labeled an unindicted co-conspirator, was not charged is it’s unlikely she wants to tip her hand.
“What’s more likely is they made strategic prosecutorial decisions that they’re not inclined to make public… not the least is you don’t have a case beyond a reasonable doubt,” said the source.
Q: Is it possible DeLeo could be charged with something?
A: Anything is possible, but that’s highly unlikely.
Q: If DeLeo wasn’t charged, why is he so upset?One of our sources who knows DeLeo and his attorney Robert Popeo well says Ortiz’s office assured them there would be no charges and the speaker wouldn’t be called as a witness. The source said DeLeo made the statements thinking he was in the clear and he and his attorney were blindsided by the prosecutors’ focus on DeLeo during the trial.
“They wouldn’t have made such proclamations in public if they thought this was going to be the direction,” said the source. “They feel they got screwed.”