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.

Q: Is the second trial going to be held?

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?

A: We’re not sure, but we hear there was some concern among prosecutors about talking about why lawmakers weren’t prosecuted when another trial is in the wings and sentencing in connection with the first trial hadn’t been completed.

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?

Meet the Author

Bruce Mohl

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.

Meet the Author

Jack Sullivan

Senior Investigative Reporter, CommonWealth

About Jack Sullivan

Jack Sullivan is 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.

A Boston native, Jack has lived in Massachusetts all his life. He was a major in English and history with a minor in political science at the University of Massachusetts, Boston. A father and grandfather, he lives in Plymouth with his wife, Susan.

About Jack Sullivan

Jack Sullivan is 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.

A Boston native, Jack has lived in Massachusetts all his life. He was a major in English and history with a minor in political science at the University of Massachusetts, Boston. A father and grandfather, he lives in Plymouth with his wife, Susan.

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.”