O’Brien judge denies prosecutors more time
Young expresses doubt again about strength of case
The judge in the federal corruption trial of former Probation commissioner John O’Brien and two top aides on Monday denied most of prosecutors’ request for additional time to draw jurors a roadmap of the bribery scheme they say ran from One Ashburton Place straight to the State House, with a primary detour through House Speaker Robert DeLeo’s office when he was chairman of the Ways and Means Committee.
US District Court Judge William Young tossed prosecutors a bone by giving them 15 more minutes to wrap up their case, bringing their time remaining to five hours, meaning they will most likely rest their case by the end of the week. But Young, as he has several times through the trial in hearings without the jury, expressed his skepticism that the government has proven its case against O’Brien’s alleged co-conspirators, Elizabeth Tavares and William Burke III, or done anything beyond showing the ugly underbelly of how patronage works.
“I have problems getting my own mind around it’s a crime,” Young told prosecutors. “You’re talking as though that this is the only state agency that engaged in that. I’d guess that’s not so. . .I think you have to have some identifiable quid pro quo.”
Defense attorneys say the patronage they engaged in is no different than what any state agency does, including judges, in trying to curry favor with lawmakers.
The hearing was held on a day Young gave jurors off to enjoy a long holiday weekend. It lasted most of the day and while the outcome did little to help prosecutors, their “offer of proof” that Young had requested to make their case for extended time continued to cast a shadow over Beacon Hill and especially DeLeo, who has continually denied any wrongdoing.
Prosecutors say they will put three more Democratic state representatives on the stand who will testify, like previous colleagues, they received calls from DeLeo’s office offering them a job to fill at the newly created Electronic Monitoring office in Clinton. Prosecutors say those jobs were given to DeLeo to hand out to move him forward in his race against state Rep. John Rogers of Norwood for the speaker’s post.
Among the new claims in the motion was the summary of testimony expected from James Kennedy, a lawyer who worked for then-Speaker Sal DiMasi and was general counsel to the ways and means committee when DeLeo was chair. According to prosecutors, Kennedy will testify that he was at a meeting with DeLeo and O’Brien as well as Leonard Mirasolo, DeLeo’s top aide whose son was hired by O’Brien and is the subject of one of the federal charges, and Christopher Bulger, a deputy commissioner of Probation who was the department’s legal counsel
At the meeting, prosecutors claim, O’Brien and Bulger pushed a major reorganization of the Trial Court administration, removing Probation from the oversight of the Chief Justice of Administration and Management, who at the time was Robert Mulligan. Among the changes they sought were restricting the chief justice’s ability to question personnel hires as well as remove his authority to discipline O’Brien. O’Brien also sought to have his salary statutorily set at $1,000 below the chief justice. At the time, the difference was about $10,000.
Bulger drafted proposed legislation but Kennedy told prosecutors he wrote a memo urging DeLeo to reject it because it was unconstitutional. The legislation never passed.
Prosecutors also say another DeLeo aide, Toby Morelli, was at a meeting between his boss and O’Brien and other staffers where they discussed “transferability,” a key change in the budget that prosecutors claim was given to O’Brien in return for jobs. Transferability is the practice of shifting money form one department budget to another. O’Brien was allegedly upset that Mulligan had removed money from his budget and placed it in other Trial Court accounts during budget shortages. Lawmakers passed an outside section of the budget preventing the chief justice from transferring funds out of Probation and prosecutors claim that is proof of the bribery charges.
“The inference does not a bribe make,” Fick argued. “Mr. O’Brien can lobby the Legislature for what he wants and patronage is not illegal. The budget is the budget, the process is the process. The Legislature holds the purse strings.”
Young also drastically limited prosecutors from offering statements Tavares and Burke gave to Paul Ware, the special counsel appointed by the Supreme Judicial Court to investigate the scandal after the Boston Globe began a series on the department’s hiring. Among the statements he will allow are Burke’s admissions that he was friends with Rep. Thomas Petrolati, then the powerful Speaker pro tempore and whose wife was hired for one of the ELMO jobs despite a lack of qualifications. Burke told Ware he emceed a fundraiser for Petrolati after he retired. John Amabile, one of Burke’s attorneys, objected to any of the statements getting in, saying the friendship proves nothing.“It gives the inference that being friends with powerful people is wrong,” Amabile said. “It’s not illegal, it’s not immoral, it’s not unconstitutional.”
Young said he would do a “line by line” redaction for allowable statements by Tuesday.