Patronage on Trial

Patronage on Trial

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

How DeLeo became a coconspirator

How DeLeo became a coconspirator

Testimony of shaky witness was key

Federal prosecutors changed their view of House Speaker Robert DeLeo during the course of the trial of former Probation commissioner John O’Brien, largely because of the testimony of a shaky witness named Edward Ryan.

Ryan, O’Brien’s former legislative liaison, testified at the trial that the commissioner had directed him to steer jobs to DeLeo so the then-chairman of the House Ways and Means Committee could use them to build support for his upcoming fight for speaker. He also testified that Leonard Mirasolo, a DeLeo aide, indicated to him that jobs were being traded for votes in the speaker fight.

Ryan’s testimony about what Mirasolo said constituted hearsay and could only be admitted if Mirasolo was a coconspirator in the alleged scheme, so prosecutors argued he was. They also argued that DeLeo was part of the scheme as well, personally handing out jobs to at least two colleagues. Judge William Young agreed that DeLeo and Mirasolo were both coconspirators, although the basis for his ruling in regard to DeLeo was unclear.

In practical terms, nothing really changed. Prosecutors have asserted all along and established through witness testimony that O’Brien gave jobs to DeLeo so he could let his colleagues in the House refer people they knew for Probation positions at a new facility in Clinton. Most of the referred job applicants were hired sight unseen.

What did change by labeling DeLeo an unindicted coconspirator was his alleged role in the scheme. Instead of someone who allegedly received bribes in the form of Probation jobs from O’Brien, DeLeo became someone who, in conjunction with Probation officials, bribed his legislative colleagues with jobs. In other words, DeLeo had become part of the alleged conspiracy at Probation and not a target of it.

Asked outside the courtroom about the shift, Assistant US Attorney Fred Wyshak acknowledged DeLeo hadn’t been identified previously as a coconspirator. But he noted that Judge Young in April split the government’s case in two, the first phase focusing primarily on mail fraud and racketeering and the second on bribery charges. He said the government’s opinion of DeLeo was the same now as it has always been. “Our position has never changed – that he was a coconspirator,” Wyshak said.

DeLeo issued several statements this week strongly condemning US Attorney Carmen Ortiz for labeling him a coconspirator. “This allegation is nothing more than a desperate legal strategy to allow the government to admit hearsay evidence from an unreliable source,” he said on Monday. “The United States attorney has chosen to try me in the press because they lack the evidence to do so in a court of law. That is simply unconscionable and unfair.”

The speaker went on to say that he had testified under oath and without immunity before the Supreme Judicial Court’s special counsel on Probation, Paul Ware, and Ware “concluded that I had not engaged in any impropriety.” Ware said after the release of his report in 2010 that he had “no reason to believe Speaker DeLeo did anything inappropriate,” but he also cautioned that his job was not to investigate lawmakers and their culpability would ultimately be decided by law enforcement officials.

On Tuesday, DeLeo dismissed the trial summation by prosecutors and said he had never traded jobs for votes for speaker. “What is, or at least should be, criminal is impugning the characters of accomplished and honorable public officials who have devoted their lives to public service on the testimony of a single immunized and non-credible witness,” he said in a statement.

In his statements, DeLeo did not deny receiving Probation jobs for distribution to his colleagues; he only denied trading those jobs for votes.

Attorneys representing O’Brien say the testimony of Ryan is suspect. They say he never mentioned DeLeo’s alleged jobs-for-votes effort in his earlier testimony before the federal grand jury or before Ware. They also note that Wyshak didn’t mention DeLeo in his opening statement at the trial.

The US attorney’s August 2013 indictment of O’Brien and his two former aides, Elizabeth Tavares and William Burke III, characterized the jobs given to DeLeo as a form of bribery. The indictment alleges O’Brien allowed DeLeo to parcel out jobs at the new facility in Clinton “in order to influence and attempt to influence members of the Legislature to act favorably on legislation and budget requests regarding the Probation Department as well as to assist [DeLeo] in an upcoming contest for the post of Speaker of the House of Representatives.”

The indictment against O’Brien, Tavares, and Burke alleged that 18 jobs at the Clinton facility represented bribes of lawmakers. Eleven of those jobs ran through DeLeo. Prosecutors said the other seven jobs ran through then-Lt. Gov. Tim Murray, Senate President Therese Murray, former House speaker Sal DiMasi, and a handful of other unnamed lawmakers. The indictment alleged that all 18 Clinton jobs amounted to bribes of the public officials. Prosecutors only pursued eight of the no-interview Clinton jobs at trial; all eight ran through DeLeo.

Under cross-examination, Ryan couldn’t remember when his jobs-for-votes conversations with O’Brien and Mirasolo took place, but he said he remembered the discussions came shortly after Rep. John Rogers, a DeLeo rival for speaker, recommended Maureen Burgoyne for a Probation job in Gloucester. Ryan testified that O’Brien was intrigued why Rogers, who represented Norwood, was interested in placing someone in a job in Essex County. (Burgoyne was also recommended by Rep. Marty Walsh of Dorchester, who is now the mayor of Boston.)

Roughly a week after Rogers recommended Burgoyne, Ryan testified, O’Brien directed him to start steering jobs to DeLeo’s office to help him in the speaker fight against Rogers. Rogers could not be reached for comment.

O’Brien attorney Stellio Sennis found Burgoyne’s name in the spreadsheets the Probation Department used to track job applicants and their political sponsors. The date on her entry was spring 2006. Sennis said during his closing statement to the jury that the timing undercuts Ryan’s claim that Probation jobs were being used to secure votes in the race for speaker because there was no race for speaker at that time.

“It’s an absurd notion. It’s just a fiction,” Sennis said of Ryan’s allegations. “This entire thing is a charade, a charade that was formulated in Ed Ryan’s head.” He went on to describe Ryan, who still works at Probation and earned $107,359 last year, as someone you “wouldn’t even trust to pick up your dry cleaning.”

The actual vote for speaker didn’t take place until January 2009. DeLeo and Rogers were trying to secure votes long before then, but it’s unclear whether there was any politicking for speaker as early as spring 2006. A Boston Globe story from June 2007 described Rogers as laying the groundwork for a run for speaker against Rep. Ronald Mariano of Quincy. DeLeo wasn’t even mentioned in that story as a possible rival.

The judge

The judge

Young draws line for jury between patronage and crimes

The federal corruption trial of state Probation Department officials wrapped up today where it began: With US District Court Judge William Young emphasizing to jurors that political patronage may be unseemly, but it isn’t illegal.

Patronage involves getting a job or promotion “based on who you know rather than what you know,” said Young in his jury instructions. “Patronage, standing alone, is not a crime.”

The government charges that former state Probation commissioner John O’Brien and two deputies, Elizabeth Tavares and William Burke III, directed a rigged hiring process at the Probation Department in which jobs were given to candidates sponsored by Beacon Hill lawmakers. The former Probation officials are facing mail fraud, racketeering, and racketeering conspiracy charges that could carry sentences of up to 20 years in prison.

For two hours Young held forth Tuesday morning, standing the entire time and likening his jury instructions to a “law school class pertaining to this case.”

He told jurors they are free to believe or question as they see fit any piece of evidence or the testimony of any witness. If they choose not to believe someone’s testimony, Young said, “It’s as if the witness never testified.” He urged them to apply “special scrutiny” to anyone who testified under a grant of immunity.

Young walked jurors up to the line separating illegal acts from those that are legal, even if sometimes questionable or inappropriate.

“Whatever you may think of it, it’s not a crime,” Young said of patronage hiring. He said it is “perfectly acceptable” for those in government to recommend someone for a job in government. He also said it’s not wrong for an office to keep records listing who has recommended whom for jobs, saying there could be “lots of innocuous reasons” to do so that don’t extend to criminal acts.

He said other actions might be deemed “questionable,” but still don’t rise to the level of crimes. Probation hiring involved a scoring system in which candidates were rated by interviewers. Young said letting those who rate the candidates know that a particular applicant was recommended by a government official might be questionable, but it still doesn’t constitute a crime.

Prosecutors allege, however, that the bogus hiring scheme O’Brien oversaw crossed those lines into criminal territory by utilizing a rigged scoring system for rating job candidates that violated the merit-based hiring procedures set forth in the Probation Department’s own hiring manual.

Young laid out the four elements the government must prove for a guilty finding on mail fraud charges, which lie at the heart of the prosecutors’ case:

1. That there was a “scheme or artifice” to defraud through false and fraudulent representations. The government says this was the rigged hiring scheme, in which scores were fudged to favor politically-connected candidates.

2. That the individuals charged in the case knowingly participated in the scheme. Young cautioned that hiring officials have a fair amount of leeway in favoring a well-connected candidate. If a candidate was legitimately in the pool of qualified finalists for a job but then selected for “the wrong reason” based on political connections, not merit, he said, that doesn’t cross the line into knowingly taking part in a fraudulent scheme.

3. That others relied on the materially false information, and money or property was provided that individuals would not otherwise have received. The reliance element centers largely on the actions of Robert Mulligan, who was the chief justice of administration and management for the state’s Trial Court. Young said Mulligan had to sign off on hiring decisions that O’Brien certified were the result of following the Probation Department’s written hiring policies. Mulligan has to have been duped by the alleged sham hiring process for this element to be proven. Young said in court on Monday, with the jury not present, that if Mulligan “knew what was going on there was no fraud because there was no material misrepresentation.” The “money or property” allegation centers on the jobs that prosecutors say lawmakers were essentially able to dole out as favors to politically-connected allies.

4. That the US postal system was used to help advance the scheme. This is essential for the charge of mail fraud to be proven. The government says some candidates applied for jobs by mail, while rejection letters were sent by US mail from the Probation Department to those passed over in the bogus hiring scheme.

Tavares and Burke were subordinates of O’Brien’s in the alleged scheme, and charges against them, Young told the jury, are only to be considered if they first find O’Brien guilty on one or more counts.

The racketeering charges, he instructed the jury, require the government to prove that the hiring enterprise affected interstate commerce. He said such an effect could be minimal. The government cited the out-of-state vendor the Probation Department utilized in its ankle bracelet monitoring program to monitor offenders. Hiring for the program, which was created under O’Brien’s watch, was part of the government case. The government also has to show, Young said, that those charged engaged in a “pattern of racketeering activity.” For O’Brien, he said, that must include at least two acts within 10 years of each other, and at least one must be more recent than March 2007, the outer bound of the five-year statute of limitation leading up to the date of the indictment in March of 2013.

Tavares is also charged with “aiding and abetting,” a charge that Young said does not require proof of her central involvement in the scheme, but only that she understood that a fraudulent scheme was in operation and acted in some way to further its operation. That involvement, he said, could be as limited as pushing hiring files through the system.

O’Brien is also facing bribery charges in connection with the government’s allegation that, together with House Speaker Robert DeLeo and DeLeo aide Leonard Mirasolo, he essentially gave lawmakers jobs to hand out at the state’s new electronic monitoring center in Clinton in exchange for their support for DeLeo, then the House Ways and Means Committee chairman, in his effort to be elected House speaker.

Neither DeLeo nor Mirasolo are charged in the case, and DeLeo has lashed out at the US attorney’s office for what he says are entirely unsubstantiated allegations that he denies.

If they deem the bribery charges not proven, Young told the jurors they must consider as a “fallback” a lesser charge of providing an “illegal gratuity.”

The government also alleges that O’Brien provided an illegal gratuity to state Rep. Thomas Petrolati by hiring his wife to direct the Probation Department’s electronic monitoring office in Springfield.

Young spoke to the jury on Tuesday before turning the proceedings over to prosecutors and defense lawyers for their closing arguments. The jury will begin deliberating on Wednesday.

Young, a former state superior court judge who was appointed to the federal bench in 1985 by President Reagan, seemed to enjoy his moment at center stage. Before delving into the specific charges, he had the jurors all stand and face him and consider the weighty responsibility they carry. He quoted an admired fellow federal jurist, Richard Arnold, who died in 2004, on the sanctity of court proceedings as the place where justice is delivered. “There has to be a safe place, and we have to be it,” Young quoted him as saying.

He also explained the various standards the jury must use to weigh testimony and other evidence. He offered an analogy to explain the concept of drawing reasonable inferences that involved barley fields, which, Young noted approvingly, play a vital role in the making of a particularly agreeable form of whiskey.

The defense

The defense

“The fraud is the government’s case”

Former Probation commissioner John O’Brien (right) with his attorneys Stellio Sinnis (center) and William Fick.

Defense attorneys for former Probation Department officials John O’Brien, Elizabeth Tavares and William Burke III devoted much of their closing arguments in their federal corruption trial on Tuesday to playing offense, assailing Robert Mulligan, the former head of the Massachusetts Trial Court, and US Attorney Carmen Ortiz.

Attorneys for O’Brien, Tavares, and Burke took varying paths in trying to knock down the specific charges against their clients, who stand accused of running the Probation Department like a criminal enterprise. But all three were united in the venom they poured on Mulligan, the government’s key witness, and Ortiz, the state’s top federal prosecutor.

John Amabile, Burke’s attorney, called the Probation case “a gross over-abuse of federal power” and “a political witch hunt.” He noted that Burke’s daughter, Mindy, was sitting in the front row of the courtroom, after having been kept out of court for the duration of the 10-week trial, because prosecutors had said they’d planned to call her as a witness. Mindy Burke was never called as a witness, although her name was repeatedly thrown around the courtroom. “It shows you the character of this prosecution,” Amabile said. “It’s a mudslinging operation – throw everything but the kitchen sink against the defense, and see if you can fool the jury.”

“There’s something disturbingly cynical about this prosecution,” argued Stellio Sinnis, O’Brien’s attorney. “Stop and take a step back and think about what this criminal prosecution is. They’re asking you to convict Liz, Billy, and Jack because they hired qualified people. They want you to convict these people and destroy their lives because they hired qualified people. That notion should shock you.”

Federal prosecutors have alleged that O’Brien, Tavares, and Burke orchestrated an elaborate hiring fraud from inside the Probation Department. They’ve said O’Brien, Tavares, and Burke maintained a patronage farm that traded jobs to legislators in return for fattened budgets and legislative clout. They’ve alleged the three defendants committed federal crimes by papering over their patronage operation, and maintaining a façade of a merit-based hiring system. O’Brien, the former Probation Department commissioner, and Tavares, his deputy, both face federal mail fraud, racketeering and conspiracy charges. Burke is charged with racketeering conspiracy.

Tuesday’s closing arguments marked the end of the legal wrangling in the probation trial, which began in the beginning of May. Attorneys for each of the three defendants rested their cases last week, without calling any witnesses of their own. So Tuesday’s closing arguments marked their first chance since the trial began to make direct appeals to the jury. Jury deliberations will commence Wednesday morning.

Sinnis, O’Brien’s attorney, made a point to contrast the probation case with recent blockbuster public corruption trials of former House speaker Sal DiMasi, former state senator Dianne Wilkerson, and former Boston city councilor Chuck Turner. O’Brien, Tavares, and Burke “didn’t get one penny,” Sinnis said. “There was zero testimony showing they got bags of cash, or a preacher’s handshake. There wasn’t even a vacation or a golf trip,” Sinnis added, referencing a scandal that helped sink former House speaker Charles Flaherty.

Sinnis tried to create multiple broad-based escape hatches the jury could use to quickly reject all the charges against O’Brien, Tavares, and Burke. Mail fraud charges require prosecutors to prove O’Brien lied when he signed off on his patronage hires. The judge in the case, William Young, told jurors that no fraud occurred if a patronage hire turned out to be the most qualified job candidate. Sinnis argued that the issue of qualifications is loaded with reasonable doubt, because prosecutors never introduced any evidence showing the qualifications of candidates who lost jobs or promotions to alleged patronage hires.

“If things are left unexplained, it’s the government’s fault, and what’s unexplained is whether these other people were qualified,” Sinnis argued. “You don’t have any evidence. You know nothing about these people. Nothing. After all this time, you don’t even know what ‘most qualified’ means. The question is unanswerable.”

The prosecution’s case also hinges on Robert Mulligan, the former chief justice for administration and management of the Trial Court. Although the Probation Department operated with a good deal of autonomy, Mulligan was technically O’Brien’s boss, and he signed off on all of O’Brien’s hiring decisions. The issue of mail fraud, which undergirds almost all of the prosecution’s case, rests entirely on the issue of whether Mulligan was deceived when O’Brien signed paperwork certifying that his hiring process complied with Trial Court procedures and was based on merit.

Judge Young said Monday that if Mulligan knew O’Brien was catering to legislators’ patronage requests, there was no fraud. So Sinnis, Amabile, and Tavares’s attorney, Brad Bailey, all threw haymakers at Mulligan; all three argued that Mulligan could not have been deceived and defrauded by O’Brien, because he knew hiring on Beacon Hill was steeped in patronage.

Mulligan’s “actions and words tell you he knew exactly what was going on, because he did the exact same thing,” Sinnis argued. Sinnis noted that Mulligan had hired the wife of then-rep. Peter Koutoujian, and had extended a court officer job to the father of Senate President Therese Murray’s chief of staff; at the time, Richard Musiol was in his 60s, and working as a short order cook. He recalled a state judge’s testimony” target=”_blank”>cursed out DiMasi for sending over woefully insufficient patronage candidates. He also noted that former Senate president Robert Travaglini routinely sent court officer candidates to Mulligan’s office.

“Why is the Senate president faxing job applications to the Trial Court?” Sinnis asked. “Because that’s how it was done, and if that’s how it was done, there can be no fraud.” He also noted that a prosecution witness, retired Probation official Edward Dalton, met with Mulligan at the judge’s home in 2006, after Mulligan expressed concern about O’Brien’s hiring practices. Sinnis noted that every substantive mail fraud count occurred after Dalton and Mulligan’s April 2006 meeting.

Amabile argued that testimony had shown patronage was marbled throughout judicial hiring, from “judges down to janitors, and it was going on way before John O’Brien ever got near the courthouse.” He called prosecutors’ claim that O’Brien pioneered patronage hiring “absolute horse manure,” and “so untrue it’s not even funny.” Recalling testimony about Mulligan wading into a 2004 Probation patronage battle between judges and O’Brien aides in Boston, Amabile argued, “For Mulligan to get up here and try to claim to you he was defrauded is a joke. He participated in patronage hiring from top to bottom.”

Amabile added, “These government lawyers are trying to perpetrate a fraud on you. The fraud is the government’s case.”

Bailey, the attorney for Tavares, largely tried to argue that Tavares couldn’t be guilty, because she had no knowledge or desire to advance a corrupt hiring regime. He admitted that while testimony showed Tavares passed the names of some patronage candidates on to Probation officials in a middle round of job interviews, there were other allegedly criminal hires Tavares had no connection to; Bailey also noted that there was no evidence Tavares intervened in the final Probation interview round, where hiring decisions were actually made.

“You can’t aid and abet what you don’t know,” Bailey argued. “You can’t find somebody guilty by osmosis. It doesn’t work that way.”

The prosecution

The prosecution

Nothing transparent about Probation hiring

Former Probation commissioner John O’Brien wrote a January 2007 letter to his nemesis, Trial Court chief Robert Mulligan, in which he defended the way people were hired at the Probation Department. “The probation officer hiring process (as it has developed and as it exists) may be the most transparent, accountable, and tested process in the public sector,” he wrote.

Yet Assistant US Attorney Karin Bell scoffed on Tuesday at O’Brien’s claim. “Members of the jury, that is a bald-faced, outright lie,” she said in the prosecution’s closing statement. “There is absolutely nothing transparent about the hiring process at the Probation Department.”

Over the course of nearly two hours, Bell laid out in detail for the 14 jurors the prosecution’s theory of the case against O’Brien and two of his top aides, Elizabeth Tavares and William Burke III. Bell took center stage in the high-stakes trial while her veteran colleague, Fred Wyshak, who offered the prosecution’s opening statement in the case, took a seat.

Bell said O’Brien, Tavares, and Burke tried to protect and expand Probation’s budget and power by developing a criminal enterprise at the agency that revolved around the awarding of jobs to the friends, constituents, and relatives of politically powerful people, including House Speaker Robert DeLeo, former House speaker Salvatore DiMasi, and Senate President Therese Murray. Bell said the scheme made jobs at Probation a form of “political currency.”

Bell said O’Brien knew his politically connected job applicants would not always be the most qualified, as the Trial Court’s hiring manual required, so he developed a hiring system that gave the appearance of legitimacy when in fact it was rigged from the very beginning. She said the evidence introduced at trial had shown that O’Brien developed sponsor lists showing the names of job applicants and their political sponsors. Bell said O’Brien then used the lists to select people for jobs even before a position was posted, resumes were reviewed, or candidates were interviewed.

Bell also charged that O’Brien joined forces with DeLeo to use jobs at a new facility for electronically monitoring sex offenders and other criminals to help cement DeLeo’s power base in the House in preparation for a successful run for speaker in 2009. Prosecutors say O’Brien and DeLeo bribed the legislators with the jobs to gain their support even though the lawmakers testified they would have never supported DeLeo’s rival, Rep. John Rogers.

DeLeo and his aide, Leonard Mirasolo, handed out the jobs to a number of reps, who referred applicants to Probation. In many cases, the applicants referred by the lawmakers were hired sight-unseen. Some of the resumes of those who were hired were faxed to the Probation Department from DeLeo’s office.

In return for letting DeLeo hand out the jobs, Bell said, O’Brien received something of enormous value. “He got a political ally who would become the Speaker of the House,” she said.

Bell said O’Brien would go on to use his relationship with DeLeo to protect his budget (in fiscal 2009, Probation received $8 million more in funding than the agency requested), to push for legislation giving the commissioner lifetime tenure and a higher salary, and to push for greater independence from oversight by judges in the Trial Court. Few of these initiatives came to fruition, but Bell said O’Brien’s pursuit of them showed his intent.

DeLeo issued another statement on Tuesday condemning US Attorney Carmen Ortiz for prosecuting him in the media. He said he rejected “out of hand” O’Brien’s proposed legislation giving the commissioner a higher salary and lifetime tenure. He said the Probation budget increased or decreased at a rate consistent with the Trial Court overall. And he said he didn’t give Trial Court officials in 2006 the power to transfer funds between agencies within the court – a practice O’Brien opposed — because neither court officials nor then- Gov. Mitt Romney requested it. (In later years, court officials did request the ability to transfer funds between agencies and those requests were not approved by the Legislature.)

“In my campaign for Speaker, I never traded jobs for votes and no one could honestly have testified otherwise. The sole basis for the US Attorney’s bogus contention otherwise is the hearsay testimony of a witness who was given immunity for his testimony,” DeLeo said in his statement.

The witness DeLeo referred to is Ed Ryan, who worked as O’Brien’s legislative liaison. Ryan was shaky on the stand, but his testimony linking the jobs at the Electronic Monitoring Office in Clinton to the fight for speaker has become a central theme of the prosecution. Bell acknowledged Ryan’s weaknesses as a witness, referring to him as a plasterer who was hired by O’Brien to do “his dirty work with the Legislature.”

She said it was also no surprise that lawmakers who received jobs from DeLeo’s office denied they were accepting bribes since they felt a key part of their job as a state representative was to get jobs for constituents.

While DeLeo has repeatedly denied trading jobs for votes, he has never explained why he was handing out Probation jobs in the first place. Bell raised that issue on Tuesday, wondering out loud why O’Brien didn’t advertise the Probation jobs in newspapers or on job banks instead of relying on DeLeo and others in the Legislature to alert potential applicants. “No one in the Commonwealth wanted to make $60,000 a year in an entry level job? Shocking,” she said.

Bell also asked jurors to consider whether DeLeo and his aide Mirasolo were qualified to serve as part of the human resources department at Probation.

Bell asked the jurors to find the three defendants guilty of mail fraud because their rigged hiring system relied on false statements and certifications made knowingly to deceive Judge Mulligan, the former chief justice for administration and management at the Trial Court. She said the mail was used by applicants submitting job applications and by Probation officials sending out rejection letters to those who didn’t receive jobs.

She said the defendants along with numerous other coconspirators at the agency ran a racketeering enterprise at the agency that relied on bribery, fraud, and conspiracy. While the names of Tavares and Burke came up far less frequently during the trial than O’Brien’s, Bell said all three played a central role in the hiring scheme.

Bell said of Tavares: “She is the person who helped make this scheme work.” Regarding the 71-year-old Burke, she suggested he may have forged interview sheets to help one job candidate get selected and worked closely to help the wife of Rep. Thomas Petrolati of Ludlow land a job in return for the lawmaker steering funds through the Legislature allowing Probation to hire several new employees. “Bill Burke made sure that this scheme reached western Massachusetts,” Bell said.

Tavares and Burke, along with other Probation officials, passed along the names of preferred candidates to those on interviewing panels and Bell said the interviewers were directed to make sure those preferred candidates were among the eight candidates referred along for a final interview.

O’Brien could have personally selected a finalist from the eight candidates forwarded to his office, but Bell said he didn’t want to do that because he knew his preferred candidate might be ranked toward the lower end of the group of eight. Bell said O’Brien was worried about an unsuccessful candidate filing a grievance against him and being forced to justify his selection. So Bell said O’Brien set up a final interview for applicants with two of his trusted lieutenants (Fran Wall and Patricia Walsh) who falsified answers, skewed the results to favor the politically connected applicant, and were prepared to lie under oath at arbitration hearings if necessary.

Bell went through every one of the hires prosecutors focused on during the trial and in nearly every case suggested the candidates barely made it into the group of eight selected by the first interview panel but then were ranked No. 1 in the final interview.

Kelly Manchester, for example, came in eighth out of the nine candidates passed on to the final interview for a job at the Bristol County Probate and Family Court. In the final interview, she was ranked No. 1. Manchester at the time was the girlfriend of Sen. Mark Montigny of New Bedford and Bell said it was obvious what her qualifications were. Yet the judge who sat on Manchester’s initial interview panel and was skeptical about her minimal qualifications testified during the trial that Manchester turned out to be an excellent employee.

Bell said O’Brien would hire his preferred candidate after the final interview and then certify in writing to Mulligan, who needed to approve it, that Trial Court hiring procedures were followed during the selection process. “Every time that Jack O’Brien signed that line, it was a lie,” Bell said, a line she would keep repeating over and over again as she dissected each hire.

Bell also pointed out that Tavares would send out rejection letters to those applicants who didn’t land a job.

Defense attorneys say Mulligan knew what was going on at Probation and practiced patronage himself, but Bell said the chief justice had to rely on the assurances of his subordinates in approving hires.

Bell conceded that Mulligan was suspicious about O’Brien’s hiring practices, but she insisted he didn’t know how deep the corruption ran. “He didn’t know it because he was being lied to,” she said.

Bell noted that O’Brien confronted top O’Brien aide Patricia Walsh about one job applicant’s miraculous transformation between the initial and final interviews. Mulligan testified that records indicated the candidate performed poorly in the initial interview and then became a “Probation genius” during the final interview. Mulligan said he grilled Walsh about the astounding change but she refused to budge.

“What did Pat Walsh do?” Bell asked. “She lied.”

While defense attorneys have portrayed the fight over Probation as a turf war over hiring between O’Brien and judges, Bell portrayed the judges as white knights fighting against the corrupt hiring process at the agency. “The judges would get in the way of Jack O’Brien’s hiring scheme,” she said, explaining why O’Brien was so eager to eliminate their oversight of his agency.

US District Court Judge William Young has repeatedly told jurors that patronage and nepotism are not crimes. But Bell said the hiring scheme at the Probation Department went well beyond patronage.

“This is not patronage,” she said. “It’s fraud and bribery and fraud and bribery are not business as usual in Massachusetts.”

US Attorney labels DeLeo a coconspirator

US Attorney labels DeLeo a coconspirator

Speaker, attorney say accusation unfair

The top public corruption prosecutor in US Attorney Carmen Ortiz’s office said Monday that House Speaker Robert DeLeo was an active member of the racketeering conspiracy that led to the federal indictment of former Probation Department commissioner John O’Brien. The allegation represents a significant escalation of rhetoric against DeLeo, who hasn’t been charged in the Probation case. And it drew a sharp rebuke from DeLeo’s attorney, who argued federal prosecutors are trying to claim in public what they can’t prove in court.

“At least by 2007, Mr. DeLeo and [former DeLeo aide Leonard] Mirasolo had become part of the conspiracy,” Assistant US Attorney Fred Wyshak told a federal judge Monday.

Asked in a courthouse hallway to clarify the government’s stance toward the House Speaker, Wyshak replied, “Our position has never changed – that he was a coconspirator.”

The disclosure of DeLeo’s alleged complicity in the Probation case came in a day of legal wrangling that set the stage for closing arguments in the O’Brien case, which are scheduled for Tuesday. Defense attorneys were trying to exclude a statement that Leonard Mirasolo, a former DeLeo aide, made to Ed Ryan, the Probation Department’s former legislative liaison. Ryan testified two weeks ago that, during the House speaker’s fight between DeLeo and Rep. John Rogers, House lawmakers were routing their Probation patronage requests through Mirasolo, and Mirasolo drew a direct link between helping lawmakers secure patronage jobs with Probation and DeLeo’s campaign for House speaker.

“Both sides were trying to get commitments,” Ryan testified. “[Mirasolo] said he believed they were getting close to the numbers [DeLeo] needed.”

Both the judge in the O’Brien case, William Young, and O’Brien’s attorneys had argued that Ryan’s testimony about Mirasolo constituted hearsay, and would only be admissible if Mirasolo was a coconspirator in the Probation case, in which O’Brien and two former deputies stand accused of mail fraud and racketeering conspiracy. Wyshak argued that Ryan’s conversation with Mirasolo should make it to the jury. He claimed that both Mirasolo and DeLeo were members of O’Brien’s alleged conspiracy, which prosecutors say traded patronage jobs for fattened budgets and legislative clout.

Prosecutors have claimed that O’Brien rigged interviews and created a false paper trail to cover up patronage inside the Probation Department. They’ve also said the patronage jobs lawmakers received from O’Brien constituted bribes and illegal kickbacks, although no lawmaker has been criminally charged in the case.

“When do they join the conspiracy?” Young asked Wyshak.

“By the time these statements had been made, they had become part of the conspiracy,” Wyshak replied. “There was an agreement between O’Brien, Mirasolo and DeLeo,” Wyshak added. “O’Brien would relinquish a number of jobs to DeLeo’s control, so he could give them to members of the Legislature, who turn out to be his supporters.”

DeLeo’s attorney, Robert Popeo, pushed back strongly against prosecutors’ claims that the House Speaker conspired illegally with O’Brien when he was the head of the Ways and Means Committee. “If they had any evidence, they would have indicted him,” Popeo told CommonWealth. “They didn’t, because they don’t have any evidence. He hasn’t been charged with a crime, but he’s being treated like he has. It’s grossly unfair.”

A number of current and former lawmakers, including DeLeo’s incarcerated predecessor, Sal DiMasi, testified before the grand jury that heard testimony on hiring irregularities at Probation. DeLeo was never called to testify before the grand jury, and DeLeo’s legal team was told the speaker was not a target of the US Attorney’s Probation investigation.

Still, last spring, federal prosecutors released a modified indictment of O’Brien that claimed the former Probation boss bribed a number of Beacon Hill lawmakers, including DeLeo and Senate President Therese Murray. Murray was the star of the trial’s early days, with numerous witnesses claiming the Senate president steered public sector jobs toward members of politically connected families. But as they wrapped up their case over the past two weeks, prosecutors have put DeLeo’s long campaign for speaker, which stretched from 2007 to early 2009, in the spotlight.

Prosecutors have tried to show a connection between DeLeo’s ambitions and a Probation patronage spree, in which O’Brien allegedly handed a number of no-interview jobs to DeLeo to distribute to fellow lawmakers. Ryan testified that O’Brien took sides in the speaker’s fight, funneling patronage through DeLeo’s aide, Mirasolo, after Rogers expressed interest in a Probation job far outside his Norwood district. Charles Murphy, a former lawmaker and onetime DeLeo partisan, testified DeLeo gave Probation’s budget preferential treatment.

Popeo said that prosecutors’ reliance on Ryan’s hearsay, which necessitates treating DeLeo and Mirasolo as coconspirators, points to a weakness in prosecutors’ claims. He said that if either Mirasolo or DeLeo took the stand, they would contradict Ryan’s testimony. “The parties with firsthand understanding weren’t called to testify,” Popeo said. “The whole thing is so distasteful, making accusations about someone who isn’t there to defend themselves.” He said the House Speaker had never entered into a conspiracy with anyone, and hadn’t done anything illegal.

“If [DeLeo] committed a crime, why isn’t he a party to the case?” Popeo asked. “Because they’re so gracious to DeLeo, they gave him a pass?”

DeLeo himself issued a statement that echoed all the themes raised by Popeo. “This allegation is nothing more than desperate legal strategy to allow the government to admit hearsay evidence from an unreliable source,” DeLeo’s statement said.

DeLeo also suggested, without mentioning her by name, that US Attorney Carmen Ortiz got her job because of recommendations made by US senators and congressmen.

Tensions between DeLeo and federal prosecutors have been rising lately. He recently labeled as untrue prosecutors’ claims that he traded Probation jobs for votes in the speaker’s race. And on Friday, he attacked Murphy, his onetime lieutenant, for testifying that DeLeo had wanted the House to take a hands-off approach to Probation’s budget. DeLeo had earlier said he had “no independent recollection” of warning lawmakers off of Probation’s budget, but on Friday, after testimony in the trial wrapped up, he called the claims Murphy made under oath “illogical” and “simply untrue.”

William Fick, one of O’Brien’s attorneys, argued Monday that prosecutors are playing up the relationship between O’Brien and DeLeo because prosecutors’ bribery accusations, which underpin the racketeering charges against O’Brien, Elizabeth Tavares, and William Burke III, are on shaky ground. However, Fick said, prosecutors are painting a false picture of the 2007-2008 no-interview hiring spree at Probation; it went far beyond House lawmakers, and involved Senate President Murray, and officials within the Probation department.

“None of it has anything to do with the House race,” Fick argued. “It’s a fiction created by [Rogers] to explain it away, and tar DeLeo. And it’s not the conspiracy that’s been charged.”

Despite concerns, Young keeps most charges

Despite concerns, Young keeps most charges

Jurors' perception of Mulligan could be key

US District Court Judge William Young on Monday slightly narrowed the charges against former Probation commissioner John O’Brien and two of his top aides but agreed to send the case to the jury pretty much as prosecutors wanted.

O’Brien and former aides Elizabeth Tavares and William Burke III are charged with running a rigged hiring scheme at the Probation Department that used patronage jobs to leverage greater funding and power for the agency from the Legislature. Prosecutors allege the defendants represented that their hiring complied with Trial Court procedures when in fact jobs were being steered to politically connected applicants. The three defendants are charged with mail fraud, conspiracy, racketeering, and bribery.

Throughout the lengthy trial, Young has continuously raised concerns about whether prosecutors had enough evidence to make their charges, particularly those related to bribery, stick. While he narrowed the reach of those charges to only a select group of hires on Monday, he nevertheless allowed the bulk of them to go before the jury. As they left court, the federal prosecutors were smiling and seemed pleased with the outcome, while defense attorneys downplayed the judge’s rulings and said the outcome was not unexpected.

The Monday court session was a chance for Young and the attorneys to work out the logistics of Tuesday’s court proceedings, where Young will offer instructions to the jury on how to deliberate and prosecutors and defense attorneys will make their closing arguments. Young made a number of key rulings which are likely to find their way into his instructions to the jury.

For example, Young said he will instruct the jury that recommending people for state jobs is not a crime, nor is keeping lists of people seeking state jobs and their political sponsors. But Young said he will tell the jury that passing names of preferred job applicants to interview panels is questionable. He said he would describe as highly questionable the passing of job applicants by an official at Probation to a subordinate. Young originally planned to call such actions improper, but changed his mind and decided to go with questionable in the afternoon.

Defense attorneys have argued that many of the alleged patronage hires were qualified and therefore should not be viewed negatively. Young said he would instruct the jury not to dwell on the qualifications of job applicants because he did not want the jury to become a “super personnel board.” He said O’Brien was entitled to pick who he wants for a job as long as the selection process did not run counter to the Trial Court’s hiring manual.

The jury’s perception of Robert Mulligan, the former chief justice for administration and management, could be critical to the outcome of the trial. Prosecutors have argued that O’Brien essentially duped Mulligan into thinking people were being hired in compliance with Trial Court procedures when in fact they weren’t. Defense attorneys have argued that Mulligan knew what was going on and practiced patronage himself with the hiring of court officers.

Assistant US Attorney Fred Wyshak argued that Mulligan wasn’t the only one to rely on the claims of hiring legitimacy made by Probation officials. He said those who lost out in job competitions and the Trial Court as a whole also suffered. But Judge Young did not agree.

“Someone has to act on misrepresentations and you said it was Mulligan,” said Young. “If he knew what was going on [at Probation], there is no fraud.”

Attorneys for both Tavares and Burke sought to narrow the charges against their clients by arguing that their roles in the alleged conspiracy were narrow and, in Burke’s case, largely indirect. But Young ruled that the jury will have to decide whether Tavares aided and abetted the hiring scheme and whether Burke, a probation official from western Massachusetts, was a key participant.

Still, Young said prosecutors will have to convince jurors that Tavares not only played a role in the hiring scheme but participated with the same criminal intent as O’Brien allegedly did. There has been little evidence introduced at trial about Tavares’s intent.

The whole notion of bribery in the case is confusing and Young indicated he would try to clarify it for jurors. For example, he said he will explain that prosecutors are not alleging that Rep. Robert DeLeo, who at the time was the chairman of the Ways and Means Committee and is now the House Speaker, was bribed but that DeLeo worked in concern with O’Brien to bribe state reps with jobs in return for their support in his bid to become speaker.

O’Brien defense attorney William Fick complained that Judge Young seemed to be offering prosecutors wide latitude on the bribery charges. He said former Gov. William Weld convinced former Senate President William Bulger to support a tax cut by steering budget money to several causes favored by Bulger. “Is that a bribe?” he asked.

Young said there was a big difference between two elected officials horse-trading over state policy and the hiring practices of O’Brien at Probation.

Young also promised attorneys that his instructions to the jury would dissuade them from finding guilt based on their distaste for patronage or nepotism. “I don’t want them saying they’re all bad, patronage is bad, let’s send a message that patronage is bad,” Young said.

DeLeo slams Murphy as illogical, untruthful

DeLeo slams Murphy as illogical, untruthful

Statement a sign of Probation trial’s political fallout

In a statement issued after 5 p.m. on Friday, House Speaker Robert DeLeo called a former top lieutenant “illogical” and “untruthful” for testifying that DeLeo told him not to cut the budget of the Probation Department in fiscal 2010.

Charles Murphy, the former chairman of the House Ways and Means Committee, testified on Wednesday at the trial of former Probation commissioner John O’Brien that he had been planning a cut of about 10 percent in the Probation budget for fiscal 2010. The Great Recession had crippled the national economy and state tax revenues were plummeting, forcing across-the-board cuts in state government.

But Murphy said DeLeo told him not to cut the Probation budget and Murphy said he complied. Murphy insisted his memory of DeLeo’s directive was clear, but the actual appropriation numbers didn’t back up his claim. The House cut the Probation appropriation in 2010 from what it was in 2009. Murphy couldn’t explain the discrepancy, but indicated he and the Speaker were talking about cuts from an internally generated budget number, not the previous year’s appropriation. “It wasn’t cut as much as the number I put forth,” he said of the House’s Probation appropriation for 2010.

On Wednesday, as Murphy was testifying, DeLeo said he had “no independent recollection” of any legislative favoritism toward Probation and said if, in fact, the department fared well in the budget process, it was because of the job the agency does.

“They did not get any special treatment. Whether it was Probation or anything in public safety, quite frankly, it was just kept in mind that public safety and the constituents of the Commonwealth were my utmost concern,” DeLeo told reporters.

But in the statement issued Friday evening DeLeo’s memory returned. He said he never told Murphy that the Probation budget “was out of bounds from cuts. Any statement to the contrary is simply untrue. Second, the public records are irrefutable and confirm the truth that, like almost all of the rest of state government, the office of the commissioner of Probation’s budget was cut substantially in fiscal year 2010.”

DeLeo noted, correctly, that Probation’s final budget number that year was 14.2 percent less than what the agency received the previous year. But the Speaker’s statement is misleading because Murphy never suggested he could control the final appropriation for Probation, since that number is the outgrowth of negotiations between the House and Senate and also affected by $9 million in vetoes by Gov. Deval Patrick.

The statement from DeLeo is another sign that political fallout from the Probation trial is beginning to be felt on Beacon Hill. DeLeo earlier in the week denied claims made by a witness at the trial that DeLeo, when he was the chairman of the Ways and Means Committee in 2008, had been given the opportunity to hand out jobs at Probation to House colleagues to cement votes for his race for speaker. The Speaker has never explained why he was handing out Probation jobs in the first place.

Fireworks finale in Probation trial

Fireworks finale in Probation trial

Last witness triggers anger and threats of perjury charges from prosecutors

A retired Probation worker incensed prosecutors and drew threats of perjury charges on the stand in the federal corruption trial of his former bosses when he apparently contradicted his grand jury testimony and statements made in interviews with FBI agents, insisting he never said the things that were recorded.

William Mattei, the last witness called to the stand by prosecutors, insisted the scoring sheets of interviews with candidates for an assistant chief probation officer position that were shown to jurors by Assistant US Attorney Karin Bell were in his handwriting, even though Bell showed him transcripts of his interview with the FBI that indicated he thought someone forged his writing.

Mattei also denied ever saying he did not support Bernard Dow, the eventual choice for the position who was allegedly the favored candidate of former Probation commissioner John O’Brien, because his work ethic was “poor.”

“I’m not sure I used the word ‘poor,’” Mattei said even after being shown his 2011 grand jury testimony that apparently showed him using that term.

Bell, usually steady and soft-spoken as she questions witnesses, was livid, marching up to Mattei and showing him his testimony and the interview notes from the FBI. She repeatedly reminded him he was under oath and could be prosecuted for perjury, exchanges that brought loud objections from defense attorneys.

O’Brien and two top aides, Elizabeth Tavares and William Burke III, are charged with multiple counts of racketeering, bribery, conspiracy and mail fraud. Bell asked questions about Burke’s participation on the interview panel with Dow, but Mattei insisted it was someone else. Even when Bell showed letters addressed to Mattei, then-Worcester District Court chief justice Paul LoConto, and Burke confirming their participation in the interview panel, Mattei said he still didn’t think it was Burke on the panel.

On his scoring sheet, Mattei had ranked Dow third on the list of 16 but said he thought Dow was the most qualified because of his 30 years of experience and educational background. He said he ranked him third based on “personal issues” he had with Dow.

“That was wrong of me,” he said.

But Bell showed him testimony where he said he questioned Dow’s work ethic as well as his demeanor.

“Were you lying there or are you lying here?” Bell asked.

“I am absolutely not lying to anyone today,” he insisted.

Bell also showed the scoring sheet from LoConto with the rankings of the candidates in the same handwriting as on Mattei’s scoring sheet. Bell asked him how that could be.

“That looks like my handwriting, but I would never do that,” he said.

Mattei insisted he was badgered in the interviews with the FBI and Bell when he was questioned earlier this year and said he thought they were trying to get him to say things that weren’t true about the promotion of Dow. O’Brien attorney Stellio Sinnis asked Mattei if Friday’s questioning was an indication of Bell’s approach to him then.

“No, it was a very nice, professional, cordial conversation, but she was asking me things I think she wanted me to say,” Mattei said.

After Mattei stepped down, prosecutors read a statement to jurors from Burke’s testimony to special counsel Paul Ware, who had been tasked by the Supreme Judicial Court with investigating the Probation scandal in 2010. Burke told Ware he was friendly with and had attended fundraisers for several western Massachusetts politicians, including state Rep. Thomas Petrolati, the former Speaker pro tempore who was dubbed “king of patronage” by the Boston Globe. Burke said after he retired in 2010, he emceed a fundraiser for Petrolati where he introduced a number of politicians attending, including House Speaker Robert DeLeo and some local elected officials he dubbed “yahoos.”

Prosecutors also showed jurors two short clips of television interviews with O’Brien just after he was suspended when the Globe published its series on the patronage hirings. O’Brien defended himself by saying in both interviews all his hirings were approved by Robert Mulligan, then the chief justice of administration and management for the Trial Court and his statutory boss. That was part of the argument defense attorneys had been making throughout the trial.

After that, Assistant US Attorney Fred Wyshak, the lead prosecutor, stood and said, “The government rests.”

O’Brien defense rests without a word

O’Brien defense rests without a word

Attorneys for all three defendants gamble prosecutors did not make their case

Defense attorneys for former Probation commissioner John O’Brien and two of his top aides let testimony in the federal corruption trial end Friday without calling a single witness to the stand.

After nearly 40 days of often contentious and mind-numbing testimony over more than nine weeks, prosecutors in the federal corruption trial of O’Brien and his two co-defendants, Elizabeth Tavares and Edward Burke III, rested their case. The lead attorney for each defendant then informed US District Court Judge William Young one by one that they would not offer any witnesses or evidence, apparently letting their often withering cross-examination of witnesses serve as the defense, confident the government didn’t fulfill its burden of “proof beyond a reasonable doubt.”

As Young was letting the 14 jurors, including two alternates, go for a long weekend before returning on Tuesday morning for his instructions and closing arguments prior to deliberations, he offered a solemn observation: “In the most important part [of the trial], you will be asked to decide the case.”

On Monday, defense attorneys are planning to make motions for directed verdicts of acquittal on all counts of racketeering, mail fraud, bribery and conspiracy and to argue to exclude some of the evidence and testimony that was presented during the trial. While Young, who dismissed a defense motion for a mistrial Friday, has said at least some of the charges had enough evidence to be presented to the jury, he has also indicated throughout the trial he did not think that prosecutors were making their case on the bribery charges or on conspiracy or racketeering, at least in relation to Tavares and Burke.

It’s not unusual for defendants to not take the stand, avoiding the chance for prosecutors to force them to say something that could tip a jury toward a guilty verdict. And it’s also not unheard of for defense attorneys to opt against putting on their own case. But given the volume of testimony offered by prosecution witnesses as well as the more than 200 documents introduced as exhibits, some hundreds of pages long, it’s a roll of the dice to let jurors make their decisions solely on what was presented from one side.

In addition, the last several weeks focused on the prosecution’s claim that O’Brien gave Rep. Robert DeLeo 10 jobs to hand out to House members to try to garner support for his run for speaker, arrangements that they termed a “quid pro quo” that proved their charge of bribery. Prosecutors called current and former representatives to the stand to testify they received calls from DeLeo or his top aide, Leonard Mirasolo, offering them jobs, which they referred to friends or associates who were hired without interviews, sometimes the same day they applied. The lawmakers also testified they voted for DeLeo as speaker, though all said there was no connection between the two actions.

In the indictment, prosecutors alleged Mirasolo’s son Brian, who is also DeLeo’s godson, was hired as a probation officer after being referred by DeLeo.

John Amabile, one of Burke’s two attorneys, told Young after jurors were dismissed that he had planned on calling a couple witnesses to rebut the allegations of Brian Mirasolo’s hiring.

“We were prepared to call two Superior Court judges to talk about the excellent performance of Brian Mirasolo,” said Amabile. “I just want to put that on the record.” Amabile did not explain why he opted against calling the judges and what he meant by “on the record,” since jurors will never hear that assertion.

The mood of the attorneys was one of relief, with Stellio Sinnis, one of O’Brien’s court-appointed federal defenders, joking with reporters, “Sorry we didn’t put DeLeo on for you.” But the attorneys said they did not feel the need to offer witnesses to rebut charges they thought did not show their clients engaged in anything more than the time-honored practice of patronage.

Young said his charge to the jury would take about 90 minutes, and he said each side would have 90 minutes for their closings, with the three sets of defense attorneys carving up their hour and a half among them. Assistant US Attorney Fred Wyshak asked Young for more time, pleading that the enormous volumes of the case could not be succinctly packaged in that short a time.

“We need more than an hour and a half to sum up,” Wyshak said. “It’s just not possible to make a comprehensive presentation to the jury.”

Young said he was “skeptical” about adding more time, indicating if he did, it would likely make the closings run over two days, which he said was unacceptable.

“You can fill a glass up with water, but once you fill it up you can add more water but it doesn’t give you anything,” Young said.

A jury full of questions

A jury full of questions

Jurors, judge at Probation trial active players in courtroom

At most trials in state and federal courts, the jury is a blank and muted canvass for lawyers to paint their cases on throughout the proceedings, its collective voice heard loud and clear only when the verdict is announced.

Perhaps a raised eyebrow here, a sly smile or chuckle there at questions posed by prosecutors or defense lawyers – mixed in with an occasional stifled yawn during a particularly dry presentation of evidence or testimony – but their silence is most notable from the time they walk in at the start of the day until the session is recessed.

Legal observers for the most part, though, say the jury participation in the federal corruption trial of former state Probation officials, especially the volume of questions, is highly unusual. What’s not a surprise, the say, is the fact that it’s happening under US District Court Judge William Young.

“The approach may be viewed as unconventional and unorthodox, but if anyone can carry it out effectively and positively affect the trial, it is Judge Young,” says Gerry Leone, a partner with the Boston law firm Nixon Peabody and former federal prosecutor and Middlesex District Attorney.

Former Probation commissioner John O’Brien and two of his top deputies, Elizabeth Tavares and William Burke III, are on trial for racketeering, mail fraud, bribery, and conspiracy. The massive and complex indictment and the volume of testimony required to prove the case has stretched the trial out for nearly 10 weeks and promises to try jurors’ memory and grasp of facts over an indictment that has even many seasoned legal observers out of breath.

Since the beginning of the trial on May 8, Young has empowered jurors to ask questions not only of him but of the witnesses as well. And ask they have. Some 278 questions have been put forth by jurors to witnesses, in writing and posed by Young after all the lawyers see the inquiry, though a handful have not been offered because Young has deemed them not appropriate to ask for a variety of reasons, either because they’re not relevant or would violate the rules regarding evidence. Sometimes there may only be a couple questions, other days as many as 12.

The questions can be mundane, such as during the testimony of several state representatives, with a juror asking, “How often is a [House] speaker elected?” Still others can be pivotal such as when Robert Mulligan, the former chief justice of administration and management, was testifying about his review of candidates selected by O’Brien and that he told his staff to alert him to questionable applicants. “What instructions did you give to your staff about red flagging?”

During the testimony, David Fournier, a 40-year friend of then-state representative Robert Rice, said Rice offered him a position in Probation and gave him a number to call at the department to express his interest. Through Young, one juror asked pointedly, “What did you tell Probation about how you learned of the job?” Fournier, who was hired, said he told them, “I heard there were openings.”

While it’s unusual, allowing jurors to ask questions during the course of a trial was upheld by the federal First Circuit Court of Appeals in 1992. Defense lawyers in that case, United States v Sutton, had appealed their client’s conviction because the judge let jurors write out questions that he would then pose to witnesses. The court, while agreeing there were pitfalls in allowing the practice on a widespread basis, nevertheless said the district court judge in the case was within his power to present the questions.

“Allowing jurors to pose questions during a criminal trial is a procedure fraught with perils,” the appeals panel wrote. “In most cases, the game will not be worth the candle. Nevertheless, we are fully committed to the principle that trial judges should be given wide latitude to manage trials. We are, moreover, supportive of reasoned efforts by the trial bench to improve the truth-seeking attributes of the jury system.”

The district court judge in that case? William Young.

“I don’t think I ever tried a case in which jurors were permitted to ask questions,” said Suffolk Law school professor Michael Avery, who teaches constitutional law and evidence and who was a practicing trial lawyer for more than 30 years. “Judges who are innovative, and Judge Young is innovative in some respects, have experimented with various forms of how do you keep their (jurors) attention up. As a professor, if I walk into a class and say ‘don’t bother asking questions,’ that would be a very boring class. But it comes with a price.”

Avery said allowing jurors to inquire about something they are curious about could disrupt the strategy of the lawyers trying the case. He said some attorneys may make a strategic decision to introduce one piece of evidence through testimony but bypass another. That strategy is out the window, however, if a juror wants to know.

“The jury then is kind of getting in the way of lawyers doing their jobs,” Avery said. “There’s a lot of strategy going into trying a case. You have a right to have a lawyer and part of that right is to have a lawyer develop a strategy. It interferes with the lawyer’s strategy.”

Boston College Law Professor Mary-Rose Papandrea, an expert in constitutional law and civil procedure, said the practice of jurors asking questions goes back to the early 18th century in English common law, when members of the community who had familiarity with the issues would sit in judgment more as a tribunal than as a jury.

“In a way it’s a return to this old historical vision of what constitutes a jury,” said Papandrea, a former litigation attorney who also clerked in the federal district, Appeals, and Supreme Court. Papandrea, though, agreed that the practice remains “unusual” and not often applied in criminal cases.

While Papandrea sees the benefits of an involved jury, she says letting jurors ask questions also introduces a different dynamic for both prosecutors and defense attorneys, one that can change the shape of testimony and evidence over the course of a trial.

“If the jury becomes too predisposed with outcome, they may take a side early on,” she said. “Usually, the jury’s a black box, you don’t know what they’re thinking. Now, the lawyers are getting a good feel for what’s working, what’s not working, what they’re buying.”

Papandrea also said it could be “unnerving” for lawyers on both sides to object to jurors’ questions for fear of alienating some on the panel. Indeed, the 1992 First Circuit decision revealed that was the case when Young asked a defense attorney at sidebar why he didn’t object if he had a problem with a question.

“I’m kind of frightened to object to a question asked by a juror lest they misconstrue and ascribe an improper motive to it,” the lawyer said, according to a transcript, “and I would only ask if the court would consider conferring with counsel before putting questions.”

Young does do that, having his clerk pass the questions around to attorneys on both sides before posing it to a witness. But he sometimes does not stop there. Probably more than most other judges, Young will himself take over questioning of a witness if a lawyer is struggling to pose a question in proper form because of objections. He’ll also ask questions to follow up on something that he feels the jury needs more information about.

Francis Larkin, dean emeritus of the University of Massachusetts School of Law in Dartmouth and a state judge for more than 20 years, said Young began asking questions when he sat on the state bench before moving to federal court. Larkin said Young was the trial judge in the infamous “Big Dan” case in New Bedford, where four men were convicted of raping a 21-year-old woman on a pool table while patrons watched and cheered. The trial, the first to be nationally televised from gavel-to-gavel, showed Young injecting questions to clarify testimony and asking follow-up questions to witnesses.

“He was in the middle of that maelstrom,” said Larkin, who called Young “the most distinguished trial judge presently sitting in Massachusetts, and maybe in the country.” Larkin added: “When there was an impasse or the jury seemed confused, he posed questions which aim to clarify and expose issues.”

Young, a graduate of Harvard University as well as Harvard Law School, does not consider himself a passive participant, most observers say. A former chief counsel to then-governor Francis Sargent, Young notably took on the case of defending the Boston Globe when it was charged by the federal government for running the Pentagon Papers. He served in the state’s Superior Court from 1978 to 1985, before President Ronald Reagan tapped him for a newly created seat on the US District Court in Massachusetts. In addition to the “Big Dan’s” case, Young also presided over the case of shoebomber Richard Reid as well as a suit involving the relatives of the last victim of the Boston Strangler.

But experts said while it is the judge’s prerogative to ask questions, he or she has to be judicious about when and how often to interject. Because of the bond jurors develop with judges, they may see something in a judge’s question that isn’t there.

“Sometimes it can be very helpful to have the judge ask questions in that it can clear up some confusion for jurors,” said Avery. “But a lot of judges don’t like to ask a lot of questions because the jury will think, if the judge is asking about this, this might be super-important and give it undue weight. They do look at the trial judge as a father-figure.”

Like the lawyers he sometimes has to reel in, Young is also prone to violating rules of evidence. During the testimony of former Probation official Francis Wall, Young took over the questioning from Assistant Attorney Fred Wyshak who was continually being interrupted by defense objections, which Young sustained. At one point, Burke attorney John Amabile objected to the form of some of Young’s questions.

“Your honor is leading the witness,” Amabile said.

“I am,” Young replied, before adding, “and the objection is sustained.”

An earlier version of this story contained the wrong surname for retired judge Francis Larkin. It has been corrected.