Patronage on Trial

Patronage on Trial

Coverage of the federal racketeering trial of former Probation Commissioner John O’Brien.

Judge goes very easy on O’Brien, aides

Says former Probation officials were part of “culture of corruption”

A federal judge on Thursday ignored sentencing guidelines and the recommendations of prosecutors – as well as his own history – before handing out much lighter-than-expected sentences to former Probation commissioner John O’Brien and two top deputies, putting the onus for the “sophistry and hypocrisy” of political patronage squarely on the shoulders of the state’s elected officials and judicial system.

Judge William Young sentenced O’Brien, who was tense and in tears throughout the sentencing hearing, to 18 months in prison and a $25,000 fine. Young sentenced former first deputy commissioner Elizabeth Tavares, who offered a tearful plea for leniency, three months and a $10,000 fine. Former deputy commissioner William Burke III was sentenced to one year of probation and a $10,000 fine.

Young made clear his decision to hand out the low sentences was based on his view that the three were just a symptom of a deeper problem and were not “rogue agents.”

“The fact that we tolerate this political patronage for so long is a form of sophistry and hypocrisy,” Young said after he handed out the sentences. “What we have here in this court is fundamentally decent people utterly without a moral compass on a sea awash in political patronage. John O’Brien didn’t invent patronage hiring in Probation.”

In July, a jury convicted O’Brien and Tavares on multiple counts of mail fraud, racketeering, and conspiracy, and convicted Burke on one count of conspiracy. Young had earlier granted prosecutors’ request to add so-called enhancements – circumstances that increase the sentencing range – bringing the potential time in prison to 57 to 71 months for O’Brien and 37 to 46 months for Tavares and Burke.

Prosecutors had asked for O’Brien to receive a 70-month sentence and Tavares and Burke 46-month sentences. But Young sentenced O’Brien to less than a third of the lowest recommended sentence and Tavares to less than a tenth of the lowest recommended sentence for her crime. Burke received no prison time at all.

Outside the courthouse after the sentencing, US Attorney Carmen Ortiz praised her team of prosecutors and, while expressing disappointment in the sentences, declared the era of patronage in Massachusetts at an end.

“This was an extraordinary victory for the government and it was also an extraordinary victory for the citizens of the Commonwealth,” said Ortiz. “There is deep irony about the sentences. The court imposed lower sentences on these three defendants because corruption in the state’s hiring system was so pervasive. In other words, the lies and the fraud which these three perpetrated, they were the illegal acts of those performing in a system which is thoroughly corrupted. While we disagree with the length of the sentences, they nonetheless stand as an important deterrent to corrupt hiring practices.”

During the course of the trial, a number of state lawmakers testified about patronage activities on Beacon Hill and the actions of some of the state’s most powerful legislators, including House Speaker Robert DeLeo and Senate President Therese Murray, were focal points of testimony. DeLeo was identified by prosecutors as an unindicted coconspirator, a characterization he vehemently decried.

All three defense teams had asked for no prison time. While O’Brien’s lawyers maintained they were disappointed with their client having to serve prison time, O’Brien and his family and friends were clearly relieved after court was adjourned. All three defendants were smiling and hugging supporters. O’Brien’s wife and three daughters, who dabbed at tears throughout the hearing, continued to cry but were smiling in the courtroom.

Stellio Sinnis, one of O’Brien’s attorneys, said the length of his client’s sentence probably reflected his supervisory role at the Probation Department.“I think [the sentence] reflects that the court believes Mr. O’Brien’s position as commissioner accounted for something,”Sinnis said. “We are grateful that the court acknowledged that patronage has been a long standing practice in hiring and we’re grateful that the court acknowledged that.”

Young, who was once cited by the federal sentencing commission as handing out among the most severe punishments to defendants, made clear throughout the hearing he was in full support of the jury verdict, praising prosecutors and investigators for pursuing the case to the end.

“One of the things I absolutely commend the government for is bringing this case to trial,” Young said. “Others may disagree with that, I do not. The trial has served a purpose.”

Much of the testimony during the trial focused on the relationships between O’Brien and legislative leaders, who often received plum positions to hand out to friends and supporters in exchange for bigger budgets and more power for Probation. In Thursday’s sentencing hearings, Sinnis tried to convince Young that the defendants were “plucked out of the system” and left holding the bag when some of the state’s highest elected officials should have been standing in the docket as defendants as well.

But Young made it clear O’Brien, Tavares, and Burke knew what they were doing. “I am convinced beyond a reasonable doubt that there was a rigged hiring scheme and [O’Brien] was the organizer of it,” Young said. “They we hardly plucked out of this system.”

Assistant US Attorney Fred Wyshak, in arguing for the stiff sentence for O’Brien, said the rigged hiring system had a devastating effect not only on the public safety in hiring politically connected candidates to oversee convicted criminals but in demoralizing a generation of young criminal justice professionals who were thwarted form getting jobs or promotions because they weren’t politically connected.

“It is not an incident of aberrant behavior,” Wyshak told Young. “The seriousness of this offense cannot be overstated. There were dozens, if not hundreds, of applicants for probation jobs. They didn’t have the right political connections.”

But Young said the fact O’Brien and his aides operated in a long-standing “culture of corruption” had to be accounted for in meting out the sentence. He said the reforms triggered by the scandal sent the signal that “the message was received” that patronage hiring would no longer be tolerated. He indicated the reforms were a result of the investigation and trial.

“How should I take that into account?” he asked. “How do I factor in the end of an era here, where for far too long we tolerated this?”

Young pointed out that Gov. Deval Patrick, amid news reports about patronage at the Probation Department, sought to move the agency from the Judiciary into the executive branch to clean it up. He indicated he didn’t think that would be a good idea.

“The governor thought maybe he’d take it over,” said Young. “Only the quick work of [then] chief justice [Roderick] Ireland kept Probation in the judiciary.”

But Young also said the state judiciary, of which he was once a member before being appointed to the federal bench by President Ronald Reagan, should be embarrassed by the patronage activities that went on under its nose. “Every judge in Massachusetts ought to be ashamed and appalled at the extent of patronage and corruption in the trial court of Massachusetts,” he said.

Wyshak had argued that part of the punishment should include the lack of remorse on O’Brien’s part and his failure to cooperate with prosecutors who were trying to tie politicians into the case, an argument that Young dismissed out of hand.

“I’m not going to punish him if he doesn’t beg for forgiveness,” said Young. “No one is going to be sentenced in this court for exercising a constitutional right. The fact that he won’t cooperate because you’re seeking someone else is not a factor here.”

Judge signals stiff terms for O’Brien, aides

Prosecutors drop remaining charges

Prosecutors in the federal trial of former Probation commissioner John O’Brien and his two top deputies said on Wednesday they will not pursue bribery charges after the judge indicated he would hand down substantial prison time for O’Brien and his aides on their racketeering and mail fraud convictions.

The announcement by Assistant US Attorney Fred Wyshak clears the way for Judge William Young to sentence O’Brien, Elizabeth Tavares, and William Burke III on Thursday. After calculating the maximum amount of time each is facing – nearly six years for O’Brien and nearly four years each for Tavares and Burke – Young hinted he would come down on the high side of the range.

As he did in the case of O’Brien last week, Young agreed to add so-called enhancements – circumstances that increase the severity of a crime and the punishment – onto the sentences for Tavares and Burke. Young found the former deputy commissioners “abused a position of public trust” but, unlike with O’Brien, rejected a prosecution argument that Tavares and Burke were organizers and had “leadership roles” in the conspiracy scheme.

Young said he looked to find averages for similar racketeering sentences in federal courts around the country as well as past cases in Massachusetts but could not so he looked at averages for mail fraud, which constituted most of the convictions.

Young said he is compelled by federal regulations to use averages in other similar cases as precedent in sentencing. While Young said the average sentence in the country was 29 months, the average sentence in Massachusetts was 36 months. But, in what may be a barometer of where Young is leaning, he said the average sentence he has handed down for mail fraud was 66 months.

In July, after a nearly 8-week trial, a jury convicted O’Brien and Tavares on multiple counts of mail fraud, racketeering, and conspiracy and Burke of a single count of conspiracy for running a rigged system. Prosecutors convinced jurors O’Brien and his aides hired favored candidates referred by legislative leaders as well as rank-and-file lawmakers in exchange for bigger budgets and more power.

Prior to the start of the trial, Young cut the indictment into two parts, with the second half on bribery charges slated to begin in January. Prosecutors had declined to drop the charges until they were certain they would be satisfied with the sentence. After Young calculated the range and stated the historical averages, Wyshak said he would file a dismissal next week on the remainder of the charges.

In addition to prison time, the three could also face one to three years of probation and O’Brien could be fined up to $100,000, while Tavares and Burke could be fined up to $75,000. All three will also lose their state pensions.

In the hearing on whether to include the enhancements, Tavares’ attorney Brad Bailey argued she was only doing her job, an argument he had made at the beginning to the trial.

“She was a messenger, saying who it was who the commissioner wanted to see in the next round,” Bailey said in arguing against prosecutors claim she was a ringleader. “I’m not sure this was anything other than an administrative function. There was no evidence whatsoever that our client participated in the certification process.”

But Young, as he has throughout the post-trial hearings, said the jury heard those arguments and found her guilty nonetheless.

“What about that argument that she’s an attorney here,” Young said, citing Tavares’ legal background. “She could have refused.”

John Amabile, Burke’s lawyer, appealed to Young to go light on Burke’s sentencing, arguing the evidence of his participation in a conspiracy was “reed thin” and suggesting his client was taking the fall for a number of unindicted do-conspirators whose actions were far worse. He urged Young to place Burke into a lesser category of conspiracy.

“I think under these circumstances it is appropriate to reduce his offense level,” Amabile said.

Young took the argument under advisement.

Ruling increases O’Brien prison time

Judge: ex-Probation commissioner ‘abused position of public trust’

A federal judge said on Thursday that John O’Brien’s prison time will be significantly increased because the convicted former Probation commissioner “abused a position of public trust.”

O’Brien was convicted this summer of mail fraud, racketeering, and conspiracy charges in connection with a rigged hiring system he ran at the Probation Department designed to curry favor with lawmakers and other public officials. Judge William Young said that O’Brien “abused a position of public trust and used his position” to increase his power base, a decision that at a minimum will nearly double the amount of prison time O’Brien gets when he is sentenced next week.

After hearing arguments from prosecutors and defense attorneys, Young said he would factor in so-called enhancements on top of federal sentencing guidelines when he hands down sentencing on Nov. 12 for O’Brien and his two top deputies, Elizabeth Tavares and William Burke III.

According to sentencing guidelines, a sentence must be significantly increased if a defendant convicted of racketeering is found by another jury trial or the judge to have engaged in activities that violate the public trust.

Assistant US Attorney Fred Wyshak said after the hearing that, with the enhancements, O’Brien is facing 57 to 71 months in prison. Under sentencing guidelines without enhancements, O’Brien would have been looking at 30 to 37 months behind bars.

O’Brien and Tavares were found guilty in July on multiple counts of mail fraud, racketeering, and conspiracy while the jury found Burke guilty of a single count of racketeering. O’Brien waived a jury trial on the enhancement issue, relying on Young to make the ruling. Prosecutors have not sought enhancements for Tavares and Burke.

Earlier during the hearing, Young denied defense motions for a new trial based on an affidavit from a former employee of the Trial Court’s Security Division, which oversees court officers. The employee, Estela Cordeiro, claimed she had spreadsheets that she said showed that former Judge Robert Mulligan, who was O’Brien’s boss, was not truthful when he said he was not influenced in hiring court officers based on recommendations from legislative leaders, including former House Speaker Sal DiMasi and then-Senate President Robert Travaglini.

William Fick, who represents O’Brien, argued that, had defense attorneys been aware of Cordeiro and her allegations, it would have made a significant difference in undermining Mulligan’s testimony.

“The missing piece and what we have now is a live human being,” Fick told Young. “We could have built a much fuller picture. It would have been extraordinarily powerful evidence.”

But Assistant US Attorney Karin Bell argued that the spreadsheets were nothing new and Cordeiro’s allegations about Mulligan knowing about the, amounted to nothing more than hearsay.

“Frankly, the government’s position is a big, ‘So what?’” she said.

In addition to denying the motion for a new trial, Young also denied a motion from Burke’s attorney for an order of acquittal on his single conviction of conspiracy. While Young admitted he mulled all his actions during the course of the trial and admitted there are things he could have and would have done differently, he said all his rulings were within his judicial power.

“After any trial, all of us go back and think of things we could have done better and that goes for me as well,” Young said. “But defendants are entitled to a fair trial, not a perfect one.”

Correction: An earlier version of this story incorrectly identified where Estela Cordeiro worked in the Trial Court. She was an employee of the Trial Court’s Security Division, not the Probation Department.

Prosecutors: Nothing new in O’Brien motion

US Attorney says court officer spreadsheets not new

Federal prosecutors on Wednesday dismissed claims by attorneys for former Probation commissioner John O’Brien and two top deputies that they had “newly discovered evidence” that a top judge lied under oath about legislative influence in hiring, saying Judge Robert Mulligan testified “ad naseum” about the existence of sponsor lists for court officers.

Defense attorneys on Monday filed a motion saying they were contacted by Estela Cordeiro, a former Probation employee, who produced job candidate spreadsheets for court officers similar to ones prosecutors had introduced during the trial of O’Brien, Elizabeth Tavares, and William Burke III to show that the Probation workers were steering jobs to the politically well-connected. Included in Cordeiro’s spreadsheets was a column that identified whether a candidate was recommended by then-House Speaker Sal DiMasi or former Senate President Robert Travaglini.

The attorneys insisted the information was “newly discovered,” a requirement for granting a new trial, but prosecutors said there is nothing new. The brief from the government says defense attorneys were told about the information during pre-trial discovery but Cordeiro’s name was misspelled, with prosecutors spelling it “Estela Cardoso.” The prosecutors said defense attorneys could have easily found out who she was then and the spreadsheets were there for their picking.

“While Ms. Cordiero’s last name was misspelled, the government’s letter identified her by title and department and informed the defendants that some of the court officer spreadsheets – including spreadsheets identical to those Cordiero describes in her affidavit – were found on Cordiero’s computer,” Assistant US Attorney Karin Bell wrote in the brief. “The defendants’ claim, therefore, that they ‘were provided with [no] information regarding who created the lists’ is incorrect.”

Bell also says Cordeiro’s claim that the names came from Mulligan amounted to no more than hearsay and nothing was offered to show Mulligan knew or acted on recommendations from legislative leaders. Cordeiro, in her affidavit, says she was given the names by Thomas Connelly, the Trial Court’s head of security, who said he received the names from Mulligan, who was the Chief Justice of Administration and Management. The prosecutors said Mulligan was consistent in his testimony that he never hired any court officers based on pressure from legislators and Cordeiro has no proof that Mulligan actually forwarded the names.

“Thus, her statement boils down to this: CJAM Mulligan might have known that the former Senate President and the former Speaker of the House sponsored court officers for employment [italics in the original],” Bell wrote.

Defense lawyers, during their withering cross-examination of Mulligan, tried to show that he engaged in the same acts as O’Brien, Tavares, and Burke but was never charged. Both Mulligan and prosecutors said there was no comparison between the two and jurors agreed, convicting the former Probation officials of mail fraud, racketeering, and conspiracy. They are set for sentencing Nov. 12.

Mulligan testimony likely untruthful – defense lawyers

Probation defendants seeking new trial

STATE HOUSE NEWS SERVICE

Defense attorneys, who represent three former probation officials convicted of secretly rigging the hiring system, are accusing former Chief Justice of Administration and Management Robert Mulligan of “likely” testifying untruthfully in the trial.

Mulligan was a key witness in the trial of former Probation Commissioner John O’Brien and two former deputies, Elizabeth Tavares and William Burke III, who were convicted July 24 for crimes associated with a scheme to base personnel decisions on political connections while disguising the hiring process as merit-based.

Defense attorneys during the trial cast the former top court official as fully aware of the patronage system in the Probation Department and accused him of practicing his own patronage in the hiring of court security officers, which he denied. Mulligan signed off on the probation hires, and contended that he was duped by O’Brien and the sham interview processes.

“Mulligan, the government’s star witness and supposed ‘victim’ of the charged mail fraud offenses, likely testified untruthfully about a material matter of dispute,” the attorneys wrote in a filing on Monday. They wrote, “To allow a jury verdict to remain intact that is based, in part, on misleading or untruthful testimony would violate the defendants’ constitutional right to a fair trial. Accordingly, the interests of justice require that a new trial be granted.”

Attempts to contact Mulligan late Monday night were unsuccessful. A spokeswoman for the Trial Court did not respond to a request for comment Monday night. No response from federal prosecutors to the defense motion was filed Monday night.

At one point during the trial, Mulligan denied hiring someone because of his connection to one of his superior’s in the Judiciary, calling the accusation “absolutely wrong and terribly misleading.” During the trial, the defense presented no witnesses of their own.

In making their accusations Monday, defense attorneys pointed to a newly decoded column in spreadsheets associated with the hiring of court officers, which they claim demonstrates Mulligan engaged in patronage.

At the trial Mulligan acknowledged keeping a spreadsheet of court officer candidates that listed who backed them, and said he kept letters of recommendation. The new evidence that the defense attorneys contend requires a new trial is a coded system on those spreadsheets that marked which candidates were backed by top leaders in the House and Senate.

According to the filing, Estela Cordeiro, an administrative assistant for the Office of Court Management, contacted the defense attorneys after the guilty verdict saying that she was the author of a spreadsheet that had puzzled the attorneys.

In an affidavit signed Oct. 16, Cordeiro said she received lists of names from the court’s acting Head of Security Thomas Connolly that indicated whether an applicant “came from” former House Speaker Salvatore DiMasi or former Senate President Robert Travaglini.

A key aspect of the case against the three former probation officials was that special deference was paid to any potential probation hire who had the backing of a member of legislative leadership.

Cordeiro said Connolly told her the lists of names were provided by Mulligan and his chief of staff Robert Panneton. Cordeiro said she assembled the names into a spreadsheet with a column titled S/T and initials to indicate whether the applicant came from DiMasi or Travaglini, and she emailed the spreadsheet to Mulligan. Cordeiro said people whose names were on Connolly’s lists were hired.

“Mulligan repeatedly denied that members of the legislature influenced his hiring decisions,” the attorneys wrote. They argued, “This information stands in stark contrast to CJAM Mulligan’s testimony in which he denied that he made lists, denied that he kept track of who was calling, denied that he was influenced by legislative recommendations, and that he received only one telephone call from Senate President Travaglini.”

The defense attorneys – Stellio Sinnis, Brad Bailey and John Amabile – said Cordeiro’s affidavit “raises serious issues of doubt regarding the credibility and veracity” of Mulligan’s testimony. In their filing to Judge William Young they said he instructed the jury at least twice that in order for the crimes to have been committed, Mulligan needed to have been defrauded by certifications O’Brien signed that the hiring process had been followed.

During the second day of its lengthy deliberations the jury asked whether Mulligan had to have been deceived, and Young told them they need to consider what Mulligan “would have made of” the certifications. As part of their filing the defense attorneys included one of Cordeiro’s spreadsheets from around December 2005.

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.

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.

Probation juror says DeLeo should have been on trial

Probation juror says DeLeo should have been on trial

Calls Walsh ‘irresponsible, reckless, and borderline ridiculous’

One of the jurors in the Probation Department corruption trial sent an email to a radio talk show host on Thursday saying he felt House Speaker Robert DeLeo should have been on trial instead of former Probation commissioner John O’Brien and two of his top aides.

O’Brien and two top deputies, Elizabeth Tavares and William Burke III, were convicted of racketeering, conspiracy, and mail fraud charges last week at a trial that exposed how the Probation Department rigged its hiring system to steer jobs to politically connected people.

DeLeo quickly issued a statement in response to the juror’s email, saying he found it incredible that an unidentified juror would express a personal view of his culpability in a case “in which I was not charged, not called as a witness, and not able to present evidence or otherwise defend my reputation.”

The Probation verdict is generating enormous controversy. DeLeo, who was identified by prosecutors as an unindicated coconspirator during the trial, said the verdict exonerated him because the jury rejected bribery charges. Boston Mayor Marty Walsh appeared on WGBH’s Boston Public Radio show on Tuesday with Jim Braude and Margery Eagan and said he didn’t think O’Brien committed a crime.

The juror, who was not identified, took sharp issue with both public officials. (For a full transcript of the email, click here.)

“In no way do I feel our decision exonerated DeLeo. To the contrary, I feel he should have been on trial rather than O’Brien. We found gratuity proven, rather than bribery, because no witness was able to testify to the conversations that occurred between O’Brien and DeLeo. All of it seemed suspicious, but we had no testimony that spoke to what DeLeo said or did,” the juror’s email said.

“To feel these jobs were given to DeLeo to hand out for no reason whatsoever strains credulity; however, I feel O’Brien himself is the only person who could prove whether this was a gratuity or a bribe and he chose not to testify. My hope is that John [O’Brien] himself will at some point testify against DeLeo and, in exchange, any sentence against him or Liz Tavares or Bill Burke will be lessened or done away with all together.”

The juror went on to say the case was a hard one for the jury. “Personally, I found O’Brien likeable and feel he was stuck between a rock and a hard place – make the Legislature happy, or suffer budget cuts and/or layoffs of the staff you oversee and care about. He did the wrong things for the right reasons.”

DeLeo condemned the continued attacks on him. “Under these circumstances, it is impossible to defend oneself against allegations that lack sufficient evidence to result in an indictment,” he said in his statement. “The evidence was lacking because the allegations are untrue. Unfortunately, allegations don’t have to be true in order to be harmful; they need only be frequent. Repetition will not change the fact that the allegations are false, and they can never be proven to be otherwise.”

As he has in the past, DeLeo focused on key legal issues in the case but did not explain what he was doing handing out Probation jobs at a facility in Clinton. Trial testimony indicated DeLeo and one of his aides would tell other lawmakers about the availability of jobs and allow those lawmakers to recommend people for the positions. The people in most cases were hired sight unseen by O’Brien.

The juror also criticized Walsh’s comments as “irresponsible and reckless, and borderline ridiculous,” largely because the mayor admitted he didn’t follow the case closely or have all the facts. The juror said that, in his opinion, federal prosecutors proved beyond a reasonable doubt the charge of mail fraud, which formed the basis for the racketeering and conspiracy charges.

“I would hope the Mayor of a major city would know something (anything) about an issue before he comments,” the juror wrote.

The long arm of Probation

Conflicts abound over sentencing

The fallout from the Probation scandal appears to have gone beyond state lines and could have an impact on sentencing for former commissioner John O’Brien and his two top deputies.

O’Brien, Elizabeth Tavares, and William Burke III are scheduled for sentencing on Nov. 12 after a jury found them guilty of racketeering and mail fraud in the first Probation trial that ended last week. At a hearing Wednesday to schedule dates for a potential second trial on bribery charges, US District Court Judge William Young informed prosecutors and defense attorneys he has transferred the responsibility for the required pre-sentencing report to the federal probation service in Rhode Island.

Presentencing reports include a defendant’s criminal history, the number of victims and the impact of the crime on them including financial damages, drug tests, other police reports, and any other records or information that would have an effect on sentencing imposed by the judge. While each count carries a maximum sentence of 20 years, the federal sentencing guidelines would indicate Young would impose a sentence of 12 to 18 months in prison at the most.

Young said Christopher Maloney, the chief probation officer for the US District Court in Massachusetts, informed him he thought there was a potential conflict with the Massachusetts office overseeing the sentencing investigation. While Young said Maloney did not give specific reasons, Young said the indication was there is interaction between the state and federal probation offices that could potentially raise concerns.

But Stellio Sinnis, one of O’Brien’s court-appointed federal defenders, said he got a call from the woman in charge of probation in Rhode Island and he was troubled by one of her revelations.

“She said she had a probation officer who had applied to the [Massachusetts] state probation service a number of times and had been passed over,” Sinnis told Young.

While Young said he wasn’t going to change his order for Rhode Island to do the investigation, he said it was the first he had heard of that. He approved Sinnis’ request to call the New Hampshire federal probation service to see if there were similar conflicts there. Young said he could revisit the matter at another date.

During the hearing, Burke attorney John Amabile asked Young to postpone sentencing until after the second trial, which is tentatively scheduled to start on Feb. 23 next year. Amabile argued the result of the second trial could have an impact on any sentence Young may mete out.

Young initially said the delay “actually makes some sense,” but opted against it after Assistant US Attorney Fred Wyshak said the sentencing and deadlines for post-trial motions should proceed as planned on Nov. 12 because the result could impact whether or not there is a second trial. When Young hands down the sentence, Wyshak said that should be the end of it from prosecutors’ standpoint.

“The government will probably, at that juncture, opt not to proceed,” Wyshak said.

Q&A on Probation case

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?

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.”

DeLeo criticizes Ware, calls him unprofessional

DeLeo criticizes Ware, calls him unprofessional

But Speaker cites selective evidence to make his case

House Speaker Robert DeLeo over the weekend lashed out at Paul Ware for suggesting a statement Ware made in 2010 should not be construed as clearing the Speaker of any wrongdoing in the Probation Department scandal.

DeLeo, in a statement released late Saturday afternoon, said it was puzzling why Ware, the independent counsel who investigated hiring practices at the Probation Department, waited four years to correct the record. Yet a news report from just weeks after Ware made his original comment suggests his office did try to correct the record then, an attempt that was ignored by the Speaker.

In November 2010, following the release of his report on the Probation Department, Ware was quoted by the State House News Service as saying he had “no reason to believe Speaker DeLeo did anything inappropriate” and added that he did not think the report “sheds any negative light on Speaker DeLeo.” Ware also cautioned that he did not investigate members of the Legislature during his investigation and law enforcement officials would ultimately decide whether criminal charges were warranted.

DeLeo has repeatedly cited Ware’s statement over the years, and particularly over the last couple weeks, to proclaim his innocence of any wrongdoing in the Probation scandal. On July 14, a DeLeo statement said: “Mr. Ware concluded that I had not engaged in any impropriety.” On July 24, DeLeo went further, saying “the jury’s verdict today is consistent with the findings of the independent counsel almost four years ago – which found no impropriety on my part.”

Ware on Friday took exception to DeLeo’s characterization of his remarks. “It is a distortion on the part of the Speaker to claim the investigation of the independent counsel exonerated him, because it did not,” Ware said. Ware added that he was not implying that DeLeo engaged in any criminal conduct, but nor was he implying that the Speaker was innocent of any wrongdoing.

DeLeo late Saturday afternoon released a statement calling Ware “unprofessional” and added that it was puzzling why he never refuted his original statement.

“Why, after almost four years of my publicly referring to this statement and during which time Mr. Ware and I spoke in regards to this matter and my court reorganization and hiring reform legislation, Mr. Ware would suddenly and substantially make an inconsistent statement is puzzling. Mr. Ware’s attempt to rewrite history is disturbing and unprofessional. Fortunately, the public record reflects accurately his statements and opinion up on which I and others relied,” DeLeo’s statement said.

But DeLeo left out a key piece of evidence. On November 30, 2010, just a couple of weeks after Ware made his original comment about DeLeo, Ware’s deputy independent counsel, Kevin Martin, stated emphatically in a State House News Service story that the Probation report “does not accuse any politician of criminal conduct in connection with hiring or exonerate any politician.” He added: “While we did not find any specific evidence of wrongdoing by Rep. DeLeo, that was not our focus. We leave it to other government agencies to follow up on the statistical evidence we noted with respect to legislators.”