Probation defense: What did Judge Mulligan know?

Was he aware of the hiring shenanigans?

Defense lawyers for former state Probation Department boss John O’Brien fought hard last week to bring patronage-laden court officer hirings into play at O’Brien’s federal corruption trial. On Monday, O’Brien’s defense began to put some of those trial court patronage jobs in play. In doing so, they began to lay the groundwork for what looks likely to become the defining clash of the O’Brien trial: a showdown between O’Brien’s lawyers and Robert Mulligan, the former chief justice of the state’s trial court.

Prosecutors have alleged that O’Brien and two top deputies ran the Probation Department as a crooked patronage haven, one that traded Probation jobs to legislators in return for fat budgets and political clout. The prosecution has argued that the system O’Brien oversaw differed from garden-variety patronage because, they’ve said, O’Brien rigged the Probation hiring system, and then covered it up.

O’Brien and the two deputies, William Burke and Elizabeth Tavares, are facing federal racketeering and conspiracy charges. The US Attorney’s office is trying them with the same law federal prosecutors used to take down the Mafia and Whitey Bulger. But the judge presiding over the Probation case, William Young, has been clear that he believes the O’Brien case is, first and foremost, about mail fraud. And any mail fraud case against O’Brien begins and ends with Robert Mulligan.

Probation is an arm of the state judiciary, and Mulligan, the former head of the trial court, was nominally in charge of the Probation department. However, a 2001 state law pushed by former House speaker Tom Finneran removed most of Mulligan’s oversight over Probation, and consolidated power in O’Brien’s hands. Mulligan retained the ability to approve or reject O’Brien’s hires, but Mulligan had no say over which names O’Brien forwarded to him for approval.

This is the core of the government’s mail fraud case against O’Brien: that O’Brien was sending rigged patronage hires to Mulligan and calling them legitimate, while mailing rejection letters to candidates who should have, in a patronage-free system, been hired. The case against O’Brien rests on showing that Mulligan was duped by O’Brien into making bad patronage hires. But the government can’t hang a mail fraud conviction on O’Brien if Mulligan was aware of the hiring shenanigans that were happening at Probation.

On Monday, O’Brien’s lawyers began laying the groundwork for their assault on Mulligan. Prosecutors had spent the past two days at trial having Francine Gannon, a top aide to Senate President Therese Murray, explain how the Legislature steered patronage hires to O’Brien. Gannon kept extensive files on every case she worked on and, in prosecutors’ hands, her files became road maps to Beacon Hill patronage and favor-trading.

Related: Senate President pushed Probation on son of judge Gannon connected Murray’s office to four of the hires prosecutors have linked to mail fraud charges. Gannon’s work wasn’t limited to Probation, though. Defense lawyers used Gannon to make the case that Mulligan was involved in the same type of influence-peddling O’Brien stands accused of. Defense lawyers produced documents from inside Murray’s office showing that the Senate president had steered patronage jobs in Mulligan’s courts to well-connected individuals.

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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.

Mulligan hired Richard Musiol, the father of Murray’s chief of staff, as a court officer. He signed off on the promotion of Patricia Bellotti, the sister of the current Norfolk County sheriff, who was in a political fight for a promotion inside the Dedham courthouse. Both personnel moves came after high-level interventions by Murray staffers with Mulligan aides. And, O’Brien’s lawyers are likely to say, these interventions are evidence that Mulligan could not have been surprised to learn about O’Brien’s political hiring at Probation, because he was staffing his courthouses in a similar manner.

Gannon was the second prosecution witness that defense lawyers used to tie Mulligan to questionable hiring practices. On Friday, Judge Catherine Sabaitis, head of the Plymouth Country Probate and Family Court, told a lawyer for Tavares that she was so worried about the quality of one pending Probation hire that she placed two calls to Mulligan’s office. Sabaitis testified that she left complaints with a top Mulligan aide, but that Mulligan signed off on the hiring of the son of a politically-connected Plymouth County family anyway.