Probation lawyers say jury asked too many questions

Claim jurors turned into ‘mini G-Men and Women’

Lawyers for the three Probation officials convicted of racketeering and mail fraud filed motions on Tuesday seeking their clients’ acquittal, in part claiming the federal trial judge’s decision to allow jurors to ask questions of witnesses turned the men and women of the jury into “mini G-Men and Women.”

Jeffrey Denner, one of the attorneys for former deputy Probation commissioner Elizabeth Tavares, wrote that the volume of questions Judge William Young allowed jurors to ask as well as the content usurped the lawyers’ ability to get their clients a fair trial and became a feeding frenzy for the 16 men and women on the panel.

“The practice here essentially transformed the petit jury [a trial jury] into a grand jury,” Denner wrote. “It allowed the jury to become emotionally invested in the outcome in a way that eviscerates the defendants’ constitutional right to a fair trial. It provides incentives for one juror to attempt to one-up another juror by asking better questions… Simply put, it creates a system in which the jurors evolve from the detached arbiters of fact they are constitutionally designated to be, into mini G-Men and Women.”

Tavares was convicted along with former Probation commissioner John J. O’Brien and another former deputy, William Burke III. The attorneys for O’Brien and Burke also filed briefs seeking to overturn the jury verdict. O’Brien’s motion incorporated many of the same arguments his attorneys made at trial, but also said the jury weighed evidence improperly and Young’s directions to the jury contained errors. The Burke and O’Brien briefs endorsed the arguments made by Tavares as well.

The three defendants were charged with entering into a conspiracy to rig the Probation Department’s hiring system to favor the candidates of state legislators, who then steered more power and bigger budgets to the agency. The case shook Beacon Hill after a number of lawmakers, including House Speaker Robert DeLeo, were labeled unindicted co-conspirators, though none were ever charged.

In the course of the trial, jurors passed 281 questions to Young, who put most of them to witnesses. Defense attorneys objected to the procedure at the outset of the trial, but Young overruled them. CommonWealth ran a story about the practice during jury deliberations, with most experts saying judges have the right to allow juror questions. Yet most of the experts said Young is the most prolific advocate of jurors asking questions of those judges who allow them.

In his motion for acquittal, Denner cited a passage from a 1992 federal Appeals Court decision that said allowing jurors to ask questions during the course of a trial is “fraught with perils.” But the ruling, which involved a case overseen by Young, upheld the right of a trial judge to allow jurors to ask questions of witnesses, although the Appeals Court justices noted the practice would often yield little benefit. “In most cases, the game will not be worth the candle,” the court ruled.

Denner said Young went too far. “Given the sheer number of questions, and the care with which many of them were written, it is a grave concern that a substantial amount of evidence and testimony was missed throughout the trial,” Denner wrote.

Denner also challenged Young’s instructions, claiming the judge allowed jurors to make decisions on evidence that did not rise to the level of “reasonable doubt.” Denner said Young’s use of the term “questionable” in describing Tavares’ conduct as well as defining the Probation hiring system as “merit-based,” which defense lawyers challenged, tainted the jury. While those arguments probably have little chance of succeeding in a motion to acquit, they lay the groundwork for an appeal based on judicial error.

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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.

Many of the other arguments that both Denner and John Amabile, one of Burke’s attorneys, make in their motions are repeats of their arguments both during the case and in closing arguments, including arguing the prosecution did not meet its burden in presenting evidence that proved guilt beyond a reasonable doubt. Prosecutors still have to file their response before Young makes a ruling. He could also schedule a hearing.

O’Brien and his deputies are scheduled for sentencing on Nov. 12 if Young does not grant the motions. The former Probation officials are also facing a second trial on bribery charges, which were severed by Young earlier this year when he ruled the indictment was too unwieldy and complex for a jury trial. The second trial is tentatively scheduled to begin Feb. 23, 2015, but prosecutors have indicated they may drop those charges if they are satisfied with the sentences the three receive.