Patronage on Trial

Patronage on Trial

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

O’Brien lobbied DeLeo for more power in ‘07

O’Brien lobbied DeLeo for more power in ‘07

Rep took no action on bid for lifetime tenure

Former Probation commissioner John O’Brien came to see then-Ways and Means Chairman Robert DeLeo in September 2007 lobbying for legislation that would give him much greater powers, a bigger salary, and lifetime tenure. No legislation ended up being filed, but seven months later DeLeo started steering jobs at Probation to candidates recommended by his colleagues in the House.

James Kennedy, who worked as an aide to DeLeo from 2004 to 2011, testified at the federal trial of O’Brien and two of his top aides that he was at the meeting in DeLeo’s office when O’Brien pitched legislation that would eliminate oversight of his agency by the Trial Court’s chief justice for administration and management. Kennedy, who now serves as the House legal counsel, said the proposal also would have set O’Brien’s salary $1,000 below what the chief justice is paid and given him lifetime tenure.

Kennedy said O’Brien offered two possible approaches to changing the law, one via amendments to the existing law and the other a rewrite of the law. Kennedy said he recommended both approaches be rejected. He said he thought O’Brien’s proposal for rewriting the law was unconstitutional while the amendment approach was unacceptable because of the lifetime tenure provision.

Kennedy recalled no details from the meeting, including what O’Brien and DeLeo said to each other. For his testimony, the lawyer relied on a written summary of the meeting he prepared afterward.

Seven months later, DeLeo and his aide Leonard Mirasolo began handing out Probation jobs at a new Electronic Monitoring (ELMO) office in Clinton to members of the House. Former Rep. Robert Rice of Gardner and current Reps. Anne Gobi of Spencer, James O’Day of West Boylston, Harold Naughton of Clinton, Kevin Honan of Brighton, and Michael Moran of Brighton all said either DeLeo or Mirasolo offered them the opportunity to recommend someone for a job at Probation’s ELMO office in Clinton. In several cases, the recommended person was hired sight unseen after submitting an application.

Rep. David Linsky of Natick testified on Thursday that Mirasolo called him in April 2008 asking if he could recommend anyone for a job at the Clinton facility. Linsky recommended Richard Philben, a long-time friend who served as his campaign manager in 2006. Linsky said Philben, who had a law degree but hadn’t passed the bar yet, was highly qualified for the job, which paid $40,446.

Like the other reps who placed people at the Clinton facility, Linsky said the job given to Philben had nothing to do with his support for DeLeo in the race for Speaker. DeLeo won that post in early 2009.

DeLeo himself on Wednesday said he never traded jobs for votes, essentially rebutting the testimony of Edward Ryan, the Probation Department’s former legislative liaison, who said O’Brien had told him the jobs were designed to help DeLeo become speaker. DeLeo has not addressed why he was handing out Probation jobs in the first place.

The debate about DeLeo’s involvement with Probation hiring came as the prosecution wrapped up its case running through a series of witnesses to tie up a host of loose ends.

Kennedy, for example, testified about a fiscal year 2001 budget amendment that directed $504,000 to Probation to hire 14 people.

William Marchant, the chief financial officer of the Trial Court, testified that every division of the court system saw a budget cut in fiscal 2009 except for Probation, where the budget rose from $134.7 million to $142.3 million.

Marchant also produced a document at the last minute suggesting that Robert Mulligan, the former chief justice for administration and management, was correct when he testified that he had transferred $4 million into Probation to help cover a budget shortfall in fiscal 2004. Marchant produced a document showing the transfer. Mulligan had said the following year he had to take money from the Probation budget and transfer it to other court agencies. The year after that, the Legislature barred him from making such fund transfers, which has been dubbed transferability at the trial.

Toby Morelli, deputy chief of staff to DeLeo, said he was at a meeting sometime in early 2005 when O’Brien and DeLeo discussed the issue of transferability. He offered few details on what was discussed other than to say that he brought the issue to the attention of Mirasolo, who Morelli said “had a relationship” with O’Brien.

Kathleen Petrolati, a Probation employee who is the wife of Rep. Thomas Petrolati of Ludlow, testified that she obtained a job as an electronic monitoring coordinator in 2000 even though she lacked a college degree and had limited skills. She said what she knew about electronic monitoring going into the job was what she learned from an Internet search.

Petrolati landed a job paying $47,646 in Springfield, where she worked with Mindy Burke, the daughter of William Burke III, who is a codefendant with O’Brien at the trial. Petrolati’s salary increased to $61,307 in 2004. She made $108,186 last year.

Prosecutors also sought to flesh out the promotion of Bernard Dow, who moved from a probation officer’s job in Worcester to a first assistance chief probation officer’s job. Daniel Toscano, a former aide to former speaker Salvatore DiMasi, said Dow approached him for help. Toscano said DiMasi authorized him to contact O’Brien on Dow’s behalf.

Paul LoConto, the first justice of the Worcester District Court, said Dow got the job even though he wasn’t his first choice. LoConto served on the panel that interviewed candidates for the job, but his testimony was hampered by the fact that he remembered absolutely nothing about the panel. He did review his notes from the interviews and his scoring sheet and seemed to suggest that someone may have falsified his scoring sheet.

Judge William Young continued to insert his perspective into the trial. When Petrolati, the wife of a state rep, testified about working with Mindy Burke, the daughter of a high-ranking Probation official, Young cautioned: “Nepotism is not an issue in this case.”

After testimony concluded for the day, Young ruled that prosecutors could provide the jury with a so-called summary sponsor list, showing a breakdown of who applied for jobs at Probation and who their sponsors were. Prosecutors have used the sponsor lists to show how organized patronage was at the agency, but Young said: “There’s nothing wrong with having a sponsor list.”

DeLeo calls out prosecutors, denies jobs for votes claim

DeLeo calls out prosecutors, denies jobs for votes claim

Doesn’t explain why he was handing out Probation jobs

House Speaker Robert DeLeo angrily insisted on Wednesday that the Probation jobs his office steered to candidates favored by fellow lawmakers played no role in his effort to gather enough votes to become Speaker. He said the suggestion by federal prosecutors that the jobs represented a quid pro quo for votes is false.

“It’s never been done and anyone who says it’s being done is being untruthful,” DeLeo, his voice quivering at times, told reporters as he emerged from a Democratic caucus over gun control legislation. “I’m calling upon the federal prosecutors or anyone else to cease making those statements because they’re untrue.”

Federal prosecutors have alleged that O’Brien used jobs in his department to curry favor with lawmakers in exchange for bigger budgets and greater autonomy from the Trial Court. O’Brien and two top aides, Edward Burke III and Elizabeth Tavares, have been on trial for more than two months on charges of mail fraud, racketeering, conspiracy, and bribery. DeLeo has not been charged with any crime and is unlikely to be called to testify, but his actions have become a central focus of the trial.

“Had there been a quid pro quo for the Probation Department’s budget as has been alleged, 100 percent of the applicants whom I recommended would have received positions,” DeLeo said in a statement released just before meeting with reporters. “That was not the case.”

DeLeo’s comments come as prosecutors are winding down their case, likely wrapping up this week. The speaker is not on the prosecution witness list and, while he is on the defense list, says he doesn’t expect to be called even though he lamented “I cannot defend myself against false accusations.” He said he was not called before the grand jury and his only testimony in the scandal came before Paul Ware, the special counsel tasked by the Supreme Judicial Court to investigate the allegation of a rigged hiring scheme.

In the past several weeks, prosecutors have been focusing on jobs given out in the Probation’s Electronic Monitoring Office in Clinton in 2007 and 2008, when DeLeo was chairman of the House Ways and Means Committee and ramping up for a fight against state Rep. John Rogers to become speaker. Several witnesses who are or were Probation officials testified that O’Brien told them they needed to support DeLeo in the battle for the speaker’s post. They said O’Brien gave DeLeo 10 jobs at the newly created office to hand out to House colleagues to garner their support.

At least six past and present lawmakers have testified they got calls from DeLeo or his top aide, Leonard Mirasolo, offering them a post to hand out. All the reps said they suggested a candidate who was eventually hired. All of them later did, in fact, vote for DeLeo for speaker, though none said the two actions were connected.

Prosecutors have shown that all of the candidates had personal connections to the lawmakers and were hired without interviews, some even on the same day they filled out their applications for the positions. State Rep. Anne Gobi of Spencer and former Rep. Robert Rice both testified that DeLeo in 2007 offered them a position to fill at the ELMO facility, an offer neither of them found odd but also one that never occurred before or since.

“I received a call from Mr. DeLeo and he wondered if I would be interested in recommending anyone for a job in the electronic monitoring office in Clinton,” said Rice, who left the Legislature in 2010. Rice, who represented Gardner, testified that Clinton was “not in my district,” but he took the opportunity anyway to recommend an unemployed friend he knew for 40 years who was hired almost immediately.

State Rep. James O’Day testified last month he also received a call from Mirasolo seeking a recommendation for someone to fill an ELMO position. He recommended the job to Stephen Ware, a former colleague at the then-Department of Social Services. Ware testified he got a call from a Probation official telling him to go to the ELMO office in Clinton and fill out an application. Assistant US Attorney Robert Fisher put the application on the screen for jurors, highlighting the application date of Sept. 5, 2007. Fisher then showed a letter from O’Brien to Robert Mulligan, the chief justice for administration and management at the time, appointing Ware to the position that was also dated Sept. 5, 2007. Ware testified he never interviewed for the job.

Prosecutors have stated in filings and through their questioning that there was a connection between jobs and speaker votes and, in a filing with the court earlier this week, said it was a “quid pro quo” that proves their contention that O’Brien used the positions as a bribe. But DeLeo pointed out that was merely prosecutors talking and no one from the House has made that claim.

“I don’t believe there has been one lawmaker who [has testified] they have been told they were going to get a job if they voted for Bob DeLeo,” the speaker said. “There was not a lawmaker who has said they got a job for a vote.”

DeLeo did not address why he was handing out Probation jobs to associates of his legislative colleagues.

Federal prosecutors have tried to show that the Probation Department was treated well by the Legislature. Former state Rep. Charles Murphy, who was Ways and Means chairman under DeLeo, testified Wednesday he was told to leave the Probation budget alone when he suggested a 10 percent cut during the recession of 2008. Mulligan testified this week that the House changed the statute regarding his ability to move funds within the Trial Court to handle deficits in different departments by taking away his authority to shift money out of Probation.

Edward Ryan, a Probation supervisor who was O’Brien’s legislative liaison, testified O’Brien told him point-blank that the ELMO jobs were needed to give DeLeo a boost in the speaker’s fight and that it was going to help the Probation budget both while DeLeo was Ways and Means chair and when he ascended to the speakership. Ryan said after he received a call from Rogers recommending a candidate for a probation job in Gloucester District Court, O’Brien ordered him to route all House hiring calls through Mirasolo. Ryan told jurors lawmakers would call him inquiring about the ELMO openings but had already been briefed on the jobs by Mirasolo.

Mirasolo’s son, Brian, who is also DeLeo’s godson, was hired for a probation officer job after being recommended by DeLeo and his hiring is one prosecutors charge was part of the overall scheme.

“[O’Brien] had said it appeared [Rogers] was going to be running for speaker against Bob DeLeo… He said from here on in, anybody that calls regarding any position I want you to refer them to Lenny Mirasolo,” Ryan said. “Both sides were trying to get commitments. [Mirasolo] said he believed they were getting close to the numbers [DeLeo] needed.”

But DeLeo said he has “no independent recollection” of favoritism toward Probation and said if, in fact, the department fared well in the budget process, it was because of the job they do.

DeLeo said decisions on how much money went to the departments was based on “budget analysts” and would only say the information to make the decisions came from “Judge Mulligan or one of his aides,” never mentioning any meetings with O’Brien.

“I will tell you that during the recession, probation probably was treated like everybody else,” DeLeo said. “They may have been treated differently because, maybe the difference being the fact of difficulties in public safety…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.”

Murphy: DeLeo told me to spare Probation

Murphy: DeLeo told me to spare Probation

Says he said ‘yes sir,’ but numbers fuzzy

The House’s former top budget official testified on Wednesday that he was ordered by House Speaker Robert DeLeo in 2009 to spare the Probation Department from the type of drastic budget cuts every other agency was facing.

Charles Murphy, the former chairman of the House Ways and Means Committee, said the economy had just fallen off a cliff and the state budget needed to be cut drastically. He said DeLeo told him at a meeting in the Speaker’s office not to cut Probation’s budget. Murphy said he told DeLeo the optics of treating Probation differently from all other state agencies wouldn’t look good, but he said DeLeo was adamant.

“I said yes sir and I continued to march,” said Murphy, a former Marine.

While Murphy appeared clear on DeLeo’s orders, the actual budget numbers for Probation didn’t seem to back up his testimony. Murphy said he wanted to cut Probation’s budget by about 10 percent, but he was unclear about what number the 10 percent was being applied to.

The House’s actual Probation appropriation for fiscal 2010 was $133.4 million, down from the agency’s appropriation of $142.4 million the year before, or a drop of 6 percent. The House appropriation for 2010 was also well below the Senate appropriation for 2010 of $153.3 million. The final budget number for Probation in 2010 was $122.1 million, down 14.3 percent from the previous year.

Outside the courtroom, Murphy couldn’t clear up the confusion. But he insisted he heard DeLeo’s orders clearly and that the budget for Probation he took to the House floor was consistent with DeLeo’s orders. “It wasn’t cut as much as the number I put forth,” he said, but conceded he couldn’t remember what that number was.

It was that type of day at the trial of former Probation commissioner John O’Brien and two of his top aides, who are accused of operating a rigged hiring system at the agency designed to swap jobs for fatter budgets and political power. Many witnesses testified on Wednesday, but neither side emerged with any clear cut victories.

Kevan Cunningham, the first justice of the Taunton District Court, testified how O’Brien installed an acting chief probation officer at the court over his objections. But he then admitted that he went along with O’Brien’s choice when the person was hired on a permanent basis.

Cunningham said O’Brien called him in January 2006 after the chief probation officer at the Taunton District Court retired. Cunningham said O’Brien told him he wanted to make Joe Dooley, who at the time was working a probation job at Bristol Superior Court, the acting chief probation officer in Taunton. Cunningham said O’Brien’s choice concerned him. He said Dooley’s dad had been his predecessor as first justice, and Dooley and the clerk magistrate at the court had feuded for years. Cunningham said he feared the feud would resume if Dooley’s son took the job as acting chief probation officer. He also said he told O’Brien that Dooley wasn’t the best candidate. “He’s not known for his work ethic,” he said he told O’Brien.

Cunningham said O’Brien wouldn’t change his mind. “He said that Pacheco was putting enormous pressure on him,” an apparent reference to Sen. Marc Pacheco of Taunton. Cunningham said he told Paul Dolly, the regional judge in that area, about his conversation with O’Brien. Dolly is now the chief justice of the District Court system.

In March 2006, the job of chief probation officer was formally posted and Dooley applied. The interview panel consisted of Cunningham, Dolly, and two people from O’Brien’s office. All four rated Dooley No. 1, although Cunningham gave both Dooley and the candidate he favored, Carol Sylvia, a score of 88. Cunningham said he felt Sylvia was the better candidate but ranked her No. 2.

“I was afraid there would be bad feelings if I didn’t rate Joe Dooley high,” he said.

Stellio Sinnis, an attorney representing O’Brien, pointed out that Cunningham felt Sylvia was the better candidate but nevertheless signed a scoring sheet ranking Dooley No. 1. “You signed a lie?” Sinnis asked.

“I don’t believe it was a lie, sir,” Cunningham responded.

“Did you downscore Carol Sylvia?” Sinnis asked.

“Probably,” Cunningham admitted. He later added that he scored the interviews the way he did “because I knew Joe Dooley already had the position.” He suggested Dolly may have taken a similar approach.

As the prosecution rushes to wrap up its case, prosecutors called several lawmakers to the stand to flesh out their contention that O’Brien used jobs to gain influence on Beacon Hill. Reps. Michael Moran and Kevin Honan of Boston both testified that the Speaker’s office allowed them to steer people to Probation jobs at a new Electronic Monitoring Office in Clinton. Rep. Garrett Bradley of Hingham said his attempt to give Trial Court officials more control over their budget – a move that would have taken some control away from O’Brien at Probation – went nowhere.

Moran said he backed Rep. Ron Mariano of Quincy for speaker, but when Mariano dropped out in late 2007 he moved his support behind DeLeo in January 2008. In April, he said, DeLeo’s aide, Len Mirasolo, asked him if he knew anyone who might like a job at Probation. Moran said he recommended long-time friend and campaign supporter Kenneth Weiand for a $40,466-a-year job at the Clinton facility.

Weiand had previously worked as a real estate agent, as the manager of the Stockyard Restaurant in Allston, and had taken some college courses at Massachusetts Bay Community College.

Under cross-examination, Moran said he views his job as a rep to help constituents and others find jobs. “I often make the joke that’s it’s the 18th Suffolk employment agency,” he said, referring to his legislative district.

Honan said he told DeLeo in December 2007 that he intended to support him in the upcoming battle for speaker, which DeLeo won in January 2009. He said Mirasolo called him in April 2008 and asked if he had a suitable candidate for a job at the Clinton facility. Honan said he suggested Gavin Flanagan, his legislative aide, who lived in West Roxbury. Honan said the job conversation with Mirasolo was his only conversation with him.

Bradley testified about an amendment he filed to the fiscal 2006 budget that would have allowed Robert Mulligan, the chief justice for administration and finance, to transfer funds between court divisions to cover operating deficits. Bradley said the amendment, which had been drafted by Mulligan, did not pass.

Defense attorneys suggested in their questioning that Bradley filed the amendment to curry favor with Mulligan, who could close the district court in Hingham if he wanted to. They also pointed out that Bradley’s wife, Heather Bradley, is a judge in Plymouth District Court.

Mulligan himself wrapped up his testimony at the start of the day. He testified that O’Brien had informed him in one instance that nothing was inappropriate about his hiring methods and he also said he had never heard of anyone hiring someone without talking to them, which is what happened with some of the hires at the Electronic Monitoring Office in Clinton.

“Did you forget Elizabeth Cerda?” asked Sinnis, who represents O’Brien. Cerda, Mulligan’s legislative liaison, is the wife of a state rep. Sinnis said she had been hired without an interview, but Mulligan said he did interview her before hiring her, although he acknowledged that the date on her job application and the date of her appointment were the same.


Throughout the trial, prosecutors have shown jurors so-called “sponsor lists” kept by Probation officials connecting applicants to officials who made recommendations. On Tuesday, the government filed a massive 370-page summary of that list, showing who the sponsor was, who the candidate was, when the recommendation was made, and for what position. Prosecutors want Judge William Young to have it available for jurors when they begin deliberations.

Not only does the list include lawmakers from both sides of the aisle, but it also includes elected and appointed officials at the state and local level, such as then-State Auditor Joseph Denucci and former BRA chairman Clarence “Jeep” Jones. The full list can be found here.

Defense lays Probation problems on Mulligan

Defense lays Probation problems on Mulligan

Judge admits he had power but did not curtail patronage hires

Defense attorneys in the federal corruption trial of former Probation commission John J. O’Brien suggested on Tuesday that Robert Mulligan, the retired chief justice for administration and management at the Trial Court, had the power to deal with any hiring problems at the agency and didn’t get the job done.

“Were you in a little over your head as CJAM?” asked John Amabile, an attorney for William Burke III, one of O’Brien’s codefendants.

“I was not a HR [human resources] expert,” Mulligan replied. “I was occupied in many spheres; this was a small part of my responsibilities…I had to rely on the people working for me to do this in a proper and honest way.”

But Mulligan admitted he had the authority to institute changes when he discovered that hiring practices in the Probation department were in apparent violation of the Trial Court personnel manual. He said he lamented his lack of action.

“I had the authority to monitor – to monitor – his hiring,” Mulligan said of O’Brien. “It was all in great hindsight. I could have done it and I should have done it.”

Mulligan, on the stand for the third day, had previously testified he repeatedly clashed with O’Brien over hirings, with prosecutors showing numerous correspondence between the two men, including one letter where Mulligan ordered O’Brien to “winnow the field” of candidates for probation officer positions down to eight per opening. Mulligan had stated O’Brien planned to set up interviews with more than 3,800 candidates as a way to bury judges in paperwork and end their participation in the hiring process.

But O’Brien attorney Stellio Sinnis used the same letter to argue O’Brien was only following Mulligan’s orders about allowing only eight interviews for each job. Toward the end of the letter, Mulligan wrote: “You choose the process,” referring to how the eight would be selected. He then concluded by saying: “Begin immediately.”

Prosecutors charge that O’Brien and two of his top aides, Burke and Elizabeth Tavares, ran a rigged hiring system at Probation where favored applicants’ names were handed to interview panels for placement among the top candidates. The three are charged with mail fraud, conspiracy, and bribery and O’Brien and Tavares are charged with racketeering.

For more than three hours, defense attorneys tried to poke holes in Mulligan’s claims that O’Brien was a renegade department head, who often undercut the judge’s authority and used his influence with the Legislature to enact changes to give O’Brien more power and autonomy.

Last week, Mulligan testified he reviewed about 20 probation hires “red-flagged” by his aides, but on Tuesday he only talked about two being red-flagged, the daughter of a controversial Hingham District clerk-magistrate and the son of a former state representative and judge.

Mulligan recalled seeing the interview scoring sheets regarding the hiring of Alfred Gavaghan, allegedly the choice of O’Brien, for a probation officer position. He said the judge from the court wanted another candidate and lobbied for that person. When he reviewed the scoring, he said he saw that both of O’Brien’s representatives gave Gavaghan perfect scores while the judge gave her candidate a score in the 90s.

“I thought they [both sides] were scoring with an outcome in mind,” Mulligan said.

Defense attorneys focused on Mulligan’s approach to hiring court officers, which they claim was no different than O’Brien’s with probation officers. Sinnis pointed out that Mulligan received calls and letters from legislative leaders supporting different candidates and insisted Mulligan gave those referrals more weight. He also showed a spreadsheet Mulligan’s office maintained similar to sponsor sheets prosecutors have shown jurors that were kept by O’Brien, containing the candidates’ names and who they were recommended by.

“When you were hiring court officers, you gave more weight to those recommended by [legislative] leadership, correct?” Sinnis asked.

“I looked at all the recommendations received and I looked at their qualifications carefully,” Mulligan said. “I gave weight to the recommendation that they deserved. I would always look at recommendations that come from leadership, of course.”

Mulligan said he kept track of who was making recommendations in order to be able to respond if a lawmaker questioned why someone they referred was not hired.

“If the speaker comes to me and says I want you to appoint so and so, and that happened twice with [former] speaker [Sal] DiMasi, and I didn’t do it, I would want to be able to explain why,” Mulligan said. “I made merit appointments.”

Sinnis spotlighted two court officer hirings signed off by Mulligan, one the father of Senate President Therese Murray’s chief of staff, and the other sponsored by then-Senate President Robert Travaglini. Both men were older with no relevant security or police experience and both had worked most recently in the restaurant business. Mulligan insisted “maturity” was a key factor in selecting court officers.

“This is an entry level position, we look for people with maturity,” Mulligan told jurors. “We don’t discriminate based on age in the Trial Court.”

Prosecutors claim that O’Brien did not follow proper procedure in hiring and defense attorneys tried to show that Mulligan was lax in adhering to guidelines as well. Sinnis displayed the hiring documents related to the probation officers that O’Brien is charged with hiring as part of the indictment. Sinnis showed that even though Mulligan wrote letters approving the hires, he did not sign the official form certifying the hire as required by the manual. Mulligan appeared perplexed as to why his signature was not on the records.

Mulligan also said during the hiring of some 260 court officers in 2004 and 2006, he made a concerted effort to hire minorities, none of whom, he said, had high-powered sponsors.

“None of the black officers I hired had any letters of recommendations,” he said. “I had a target of hiring 25 percent black court officers.”

US District Court Judge William Young had to continually field objections, often being talked over by Mulligan whom he had to admonish to stop while he ruled. Amabile attempted to introduce evidence that Mulligan hired the son-in-law of Supreme Judicial Court Associate Justice Margot Botsford as a court officer even as the SJC was considering Mulligan’s application to serve a second-five year term as CJAM. Young cut off the questioning and sustained prosecutors objections but not before an irritated Mulligan took issue with Amabile’s inference.

“That is not at all correct, factually wrong and terribly misleading,” Mulligan protested.

Amabile got Mulligan to admit to jurors that even though he testified before the grand jury twice and met with federal prosecutors “three to five times,” he refused requests to meet with defense attorneys before the trial. Amabile suggested it was Mulligan’s animosity toward O’Brien.

“You didn’t like Jack O’Brien, correct?” Amabile asked.

“I didn’t like the way he acted,” Mulligan said. “I try not to dislike people.”


Young told jurors testimony should conclude this week and they should get the case by early next week. After jurors left, he gave lawyers a breakdown of the amount of time they have remaining before he sends the case to jurors. Prosecutors have a little less than five hours left to wrap up their case while defense attorneys have about 75 minutes remaining for cross examination and then three days to present their case, if they choose.

O’Brien judge denies prosecutors more time

O’Brien judge denies prosecutors more time

Young expresses doubt again about strength of case

The judge in the federal corruption trial of former Probation commissioner John O’Brien and two top aides on Monday denied most of prosecutors’ request for additional time to draw jurors a roadmap of the bribery scheme they say ran from One Ashburton Place straight to the State House, with a primary detour through House Speaker Robert DeLeo’s office when he was chairman of the Ways and Means Committee.

US District Court Judge William Young tossed prosecutors a bone by giving them 15 more minutes to wrap up their case, bringing their time remaining to five hours, meaning they will most likely rest their case by the end of the week. But Young, as he has several times through the trial in hearings without the jury, expressed his skepticism that the government has proven its case against O’Brien’s alleged co-conspirators, Elizabeth Tavares and William Burke III, or done anything beyond showing the ugly underbelly of how patronage works.

“I have problems getting my own mind around it’s a crime,” Young told prosecutors. “You’re talking as though that this is the only state agency that engaged in that. I’d guess that’s not so. . .I think you have to have some identifiable quid pro quo.”

Prosecutors claim the three Probation officials engaged in a rigged hiring scheme that favored candidates sponsored by state representatives and senators as well as other high-powered state officials in exchange for higher budgets and more autonomy. Prosecutors allege O’Brien would actively lobby legislative leaders and in the case of DeLeo, give him jobs to hand out to garner support for his run for speaker. That, they say, is bribery and goes to the racketeering and conspiracy charges. The mail fraud charges against the three allege they used the postal service to send out rejection letters that were meaningless because the decision had already been made and the effort was to simply cover their tracks.

Defense attorneys say the patronage they engaged in is no different than what any state agency does, including judges, in trying to curry favor with lawmakers.

The hearing was held on a day Young gave jurors off to enjoy a long holiday weekend. It lasted most of the day and while the outcome did little to help prosecutors, their “offer of proof” that Young had requested to make their case for extended time continued to cast a shadow over Beacon Hill and especially DeLeo, who has continually denied any wrongdoing.

Prosecutors say they will put three more Democratic state representatives on the stand who will testify, like previous colleagues, they received calls from DeLeo’s office offering them a job to fill at the newly created Electronic Monitoring office in Clinton. Prosecutors say those jobs were given to DeLeo to hand out to move him forward in his race against state Rep. John Rogers of Norwood for the speaker’s post.

Among the new claims in the motion was the summary of testimony expected from James Kennedy, a lawyer who worked for then-Speaker Sal DiMasi and was general counsel to the ways and means committee when DeLeo was chair. According to prosecutors, Kennedy will testify that he was at a meeting with DeLeo and O’Brien as well as Leonard Mirasolo, DeLeo’s top aide whose son was hired by O’Brien and is the subject of one of the federal charges, and Christopher Bulger, a deputy commissioner of Probation who was the department’s legal counsel

At the meeting, prosecutors claim, O’Brien and Bulger pushed a major reorganization of the Trial Court administration, removing Probation from the oversight of the Chief Justice of Administration and Management, who at the time was Robert Mulligan. Among the changes they sought were restricting the chief justice’s ability to question personnel hires as well as remove his authority to discipline O’Brien. O’Brien also sought to have his salary statutorily set at $1,000 below the chief justice. At the time, the difference was about $10,000.

Bulger drafted proposed legislation but Kennedy told prosecutors he wrote a memo urging DeLeo to reject it because it was unconstitutional. The legislation never passed.

Prosecutors also say another DeLeo aide, Toby Morelli, was at a meeting between his boss and O’Brien and other staffers where they discussed “transferability,” a key change in the budget that prosecutors claim was given to O’Brien in return for jobs. Transferability is the practice of shifting money form one department budget to another. O’Brien was allegedly upset that Mulligan had removed money from his budget and placed it in other Trial Court accounts during budget shortages. Lawmakers passed an outside section of the budget preventing the chief justice from transferring funds out of Probation and prosecutors claim that is proof of the bribery charges.

“It is yet another example of a specific quid pro quo that O’Brien obtained from DeLeo in connection with giving jobs to candidates sponsored by the House leadership,” prosecutors wrote in the brief. “It is also important proof of the racketeering conspiracy.” William Fick, one of O’Brien’s court appointed federal public defenders, dismissed the claims, saying it is just more of what he labeled the government’s “quintessential star chamber.”

“The inference does not a bribe make,” Fick argued. “Mr. O’Brien can lobby the Legislature for what he wants and patronage is not illegal. The budget is the budget, the process is the process. The Legislature holds the purse strings.”

Young also drastically limited prosecutors from offering statements Tavares and Burke gave to Paul Ware, the special counsel appointed by the Supreme Judicial Court to investigate the scandal after the Boston Globe began a series on the department’s hiring. Among the statements he will allow are Burke’s admissions that he was friends with Rep. Thomas Petrolati, then the powerful Speaker pro tempore and whose wife was hired for one of the ELMO jobs despite a lack of qualifications. Burke told Ware he emceed a fundraiser for Petrolati after he retired. John Amabile, one of Burke’s attorneys, objected to any of the statements getting in, saying the friendship proves nothing.

“It gives the inference that being friends with powerful people is wrong,” Amabile said. “It’s not illegal, it’s not immoral, it’s not unconstitutional.”

Young said he would do a “line by line” redaction for allowable statements by Tuesday.

SJC judges in dark about Probation hiring

SJC judges in dark about Probation hiring

Greaney: ‘People were asleep at the switch’

Robert Mulligan and John O’Brien are squaring off in federal court over hiring practices, much as they squared off when Mulligan was the chief justice of administration and management at the Trial Court and O’Brien was commissioner of the state’s Probation Department. But it’s worth remembering that the workplace battles between the two officials didn’t take place in an administrative vacuum: O’Brien reported to Mulligan and Mulligan in turn reported to the justices of the Supreme Judicial Court.

Yet past CommonWealth interviews with two former justices of the Supreme Judicial Court indicate the court was never briefed on the hiring disputes between Mulligan and O’Brien. Court testimony by Mulligan suggests he and O’Brien feuded between 2003 and May 2010, when Mulligan suspended O’Brien in the wake of a Boston Globe Spotlight Series on patronage at the Probation Department.

CommonWealth editor Bruce Mohl interviewed former chief justice Margaret Marshall at the end of 2009 for a question-and-answer article that was published in January 2010 and she seemed to know very little about staffing and spending levels at Probation. Colman M. Herman interviewed former SJC judge John Greaney in May 2012, and Greaney said the Probation scandal occurred because people were “asleep at the switch.”

Marshall served on the SJC from 1996 to 2010, becoming its chief justice in 1999. She is now senior counsel at the Boston law firm Choate Hall & Stewart. Greaney was an associate justice from 1989 to 2008 and is now the director of the Macaronis Institute for Trial and Appellate Advocacy at Suffolk University School of Law.

Greaney wrote the 2003 SJC decision upholding the constitutionality of the Legislature’s decision in 2001 to transfer appointment authority at Probation from judges to O’Brien. Testimony at the trial of O’Brien and his former aides Elizabeth Tavares and William Burke III suggests that change in law pushed legislative patronage at the Probation Department into high gear.

Margaret Marshall interview excerpt:

COMMONWEALTH: It seems like the probation system is one area where data isn’t driving decisions. Michael Keating, the head of your Court Management Advisory Board, tells me his group was studying the courts and discovered that costs were rising and caseloads were falling or holding steady. He says the group couldn’t figure out why until it looked at Probation, which accounts for a quarter of the Trial Court budget. They discovered that from FY05 to FY08 the probation caseload went up 2 percent, its employee level rose 10 percent, and its budget increased 17 percent. Also, the Legislature doesn’t allow you to transfer funds out of Probation in times of crisis and gives you little control over hiring there.

MARGARET MARSHALL: First, I don’t know all of Mike’s data because I haven’t seen those data. It may be that the cases have declined. I don’t know if the nature of the cases has changed. I do know that the Legislature has enacted statutes that require far more extensive monitoring of certain categories of people. There has not been full transferability, and I would say that it would be helpful to have full transferability in any given year so that when there are shortfalls we can move money around to address the critical needs. I do not know whether or not we would have moved money out of Probation because the services that Probation provides are critical for our judicial branch.

CW: You’ve said transparency and accountability are hallmarks of your tenure as chief justice. Yet the probation system, from the outside, seems like a closed system. It’s hard for someone like me to get data on how money is being spent there.

MARSHALL: I can’t respond to that. When I talk about transparency, I’m talking about how many people are employed, what’s the caseload.

CW: You obviously have that information for the courts, but do you have that for Probation?

MARSHALL: Certainly, how many people are employed. Absolutely.

CW: But do you have the level of detail you have on the rest of the court system? For example, can you tell whether Probation is overstaffed or understaffed?

MARSHALL: When we did the staffing model for the processing of cases, the same study was not done for the processing of Probation. Of course I’m aware of the concerns that are expressed, but if your question is, is there some way that I can’t get access to data, the answer to that is no.

John Greaney interview excerpt:

CW: How did the Probation Department get so bad?

GREANEY: People were asleep at the switch. Frankly, it seems to me that not only are the legislators — some of them, not all of them — massively to blame, but the courts are massively to blame, too, for letting those practices go on. And the administrative judges at all levels of the court should have been more aggressive in stopping it. And now there’s going to be a big price to be paid. You’re going to see some indictments coming of legislators I suspect at a certain point. It’s just awful.

CW: Was the SJC oblivious to what was going on?

GREANEY: When we had our regular meetings with the chief administrative judge [Robert Mulligan], who runs the whole court system, he made no mention ever at the meetings about any problems in the Probation Department. At the administrative levels of the Trial Court, they knew what was going on. I think Mulligan had a good sense that there were some real problems here. But we had no direct knowledge of it until the whole thing blew up. I can assure you that if we had known about it, we would have taken some aggressive action at that point.

CW: Before the Globe broke the story, my editor, Bruce Mohl, interviewed Chief Justice Marshall and he questioned her about Probation, and she sort of sidestepped the issue. She said she didn’t have any staffing data from the Probation Department.

GREANEY: I think at that time, they didn’t. The broad heinous picture of what was going on was simply not before us. Now that doesn’t mean that we should necessarily be excused. Our job is to supervise the whole system ultimately. On the other hand, I wonder how you supervise a system when you have reporting data that doesn’t tell you anything.

CW: Do you think Mulligan could have done more?

GREANEY: You’d have to ask him that.

CW: What could he have done? Could he have gone to Chief Justice Marshall and say, “Listen, we’ve got problems here?”

GREANEY: Yes, Yes. He could have come to her and say, “We’ve got very severe problems here” and ask us to devise some way to deal with it. One way might have been for us to pay a visitation to the legislative leadership and say, “Look, this looks to be very serious. We’ve got to do something about this.”

CW: But they were part of the problem.

GREANEY: Yes, oh they were definitely part of the problem. Probably the better approach if we were aware of it might have been for us to appoint a special commission — not a special counsel — to look into the business of the hiring of probation officers. But none of that happened.

Rep. Petrolati’s wife will testify about qualifications

Rep. Petrolati’s wife will testify about qualifications

Other questions ruled off-limits by Young

US District Court Judge William Young worked out a deal on Wednesday that will allow Kathleen Petrolati, the wife of state Rep. Thomas Petrolati, to testify at the trial of former Probation commissioner John O’Brien and two of his top aides.

The deal gives immunity to Petrolati, allowing her to testify about her qualifications for a job with the Probation Department’s Electronic Monitoring Office but little else. Prosecutors agreed not to explore how she heard about the job or the fact she was sponsored by then-House Speaker Thomas Finneran. Rep. Petrolati has been described during the trial as being actively involved in legislative patronage at the Probation Department.

In a motion filed by Assistant US Attorney William Fisher, he said Petrolati’s testimony is crucial in proving the existence of a rigged hiring system that is the basis for the conspiracy, bribery, and racketeering charges against O’Brien and two top deputies, Elizabeth Tavares and William Burke III.

“Ms. Petrolati will testify that at the time she applied for this management position, a position that entailed developing and initiating a statewide electronic monitoring program, she had no college degree, possessed no allied service experience, and no experience working in the fields of criminal justice or law enforcement,” Fisher wrote. “[She] will admit that her only knowledge of probation, or the subject of electronic monitoring, was based on materials she reviewed over the Internet.”

Prosecutors say Petrolati currently makes about $108,000 a year and has never provided a reference on any Probation Department job application.

At Wednesday’s hearing, Young told Petrolati’s attorney, William Jennings, to have his client ready to testify.

“She’s been immunized,” Young said. “I don’t recognize any Fifth Amendment privilege she has. He [Rep. Petrolati] has her testimonial immunity. We will not use her testimony against him.”


More time — Young who said he was not inclined to grant a request from prosecutors for more time to present their case, but he said he would delay a decision until after a hearing on Monday morning. Assistant US Attorney Fred Wyshak said much of the additional time would be devoted to proving the government’s case against Burke. He said one witness who scored candidates during job interviews will testify the “the scoring sheet was not in his handwriting.”

“The inference is that Burke falsified it?” Young asked.

“The witness will say that,” Wyshak responded.

Defense: Mulligan played patronage like O’Brien

Defense: Mulligan played patronage like O’Brien

Lawyers go after key prosecution witness

An attorney for former Probation Department commissioner John O’Brien on Wednesday accused Robert Mulligan, the former chief justice of the Massachusetts Trial Court, of practicing political patronage, playing fast and loose with hiring documents, and steering jobs to favored applicants without advertising them publicly. Those are all things that prosecutors in O’Brien’s ongoing federal corruption trial have accused the former Probation boss of doing. In O’Brien’s case, the alleged hiring chicanery is being held up as evidence that O’Brien sat atop a racketeering conspiracy, while Mulligan is the government’s star witness, the man prosecutors hope will put a bow on two months of testimony about Beacon Hill patronage.

Prosecutors allege O’Brien and two former top deputies, Elizabeth Tavares and William Burke III, ran Probation like a criminal enterprise, rigging job interviews and steering patronage jobs to people who came recommended by powerful Beacon Hill politicians. The bulk of the case against O’Brien, Tavares, and Burke is built on mail fraud allegations. Mulligan is the lynchpin in those allegations, because he signed off on O’Brien’s hires.

Mulligan testified Tuesday and Wednesday that he approved O’Brien’s hiring requests because O’Brien represented to him, in writing, that Probation was following a merit-based hiring system. “You’re looking for the very best person you can get,” Mulligan said Tuesday. But Wednesday, O’Brien’s attorney, Stellio Sinnis, peppered Mulligan with suggestions that Mulligan engaged in the same sort of hiring shenanigans that landed O’Brien in a federal courtroom.

Sinnis came out hot, asking Mulligan to identify his brother, who was sitting in the packed courtroom, before asking, “In 2001, you put your thumb on the Probation hiring scales as a favor to your brother, did you not?” Mulligan bristled at the charge, and denied interfering in Probation hiring. Sinnis then placed a thank-you note from Mulligan on the courtroom projector. In the note, which was written two years before Mulligan’s appointment to head the Trial Court, Mulligan thanked O’Brien for hiring a woman named Maura Mitchelson to a Probation job in the Norfolk County courts. “My brother reports she is ecstatic,” Mulligan wrote.

Sinnis said Mitchelson was the daughter of a man who sat on a bank board with Mulligan’s brother, Gerry, a former state banking commissioner. Robert Mulligan denied putting a word in for Mitchelson during the Probation hiring process, saying, “I was naive. I wrote this afterwards.”

“You were naive?” Sinnis asked incredulously. “Is that what you just said?”

“I did not contact anyone in Probation to hire this woman,” Mulligan insisted.

“Anything else you’d like the jury to know?” Sinnis asked.

Mulligan, with anger flashing in his voice, shot back, “I’d like them to know she left because she couldn’t move up in the organization, because [O’Brien] knew she knew me.”

The bulk of Mullgan’s cross-examination focused on the hiring and promotion of court officers, which Mulligan controlled directly. Massachusetts Lawyers Weekly reported two years ago that the federal investigation that led to O’Brien’s indictment also took a run at politicized court officer hiring. Fred Wyshak, the lead federal prosecutor in the O’Brien case, said during a recent procedural hearing that the FBI had concluded there was nothing illegal about how court officers were hired and promoted under Mulligan. But attorneys for O’Brien, Tavares, and Burke have repeatedly argued that Mulligan’s office maintained lists of politically sponsored job candidates that are strikingly similar to the lists O’Brien’s office kept.

Sinnis grilled Mulligan about Mulligan’s decision to give a court officer job to Richard Musiol. Musiol’s son, Rick, was Senate President Therese Murray’s chief of staff. “Tell the jury why a 62-year old short-order cook who was the father of the chief of staff of the Senate president was most qualified,” Sinnis asked. Mulligan said he was impressed by the elder Musiol’s military service in Vietnam, and testified that he “found out today” Musiol was connected to the Senate president.

“Short order prep cook?” Sinnis asked, reading Richard Musiol’s resume. “Electrician’s helper? Beverage manager? Any of those qualifications seem appropriate?”

“They’re not the best qualifications I’ve seen,” Mulligan conceded.

Murray’s constituent services director, Francine Gannon, previously testified in the O’Brien trial about Musiol’s hiring. Gannon, whom prosecutors used to show the Legislature’s influence over Probation patronage, said she worked with Mulligan’s legislative liaison to secure a court officer job for Musiol. Gannon testified she didn’t treat requests for Probation jobs any differently than she treated job requests for other state departments.

Sinnis also questioned Mulligan about the 2004 hiring of a court officer named Marc Chiarenza, whose job application was faxed to Mulligan’s office by the then-Senate president, Robert Travaglini. “Why are you getting applications from the Senate president’s office?” Sinnis asked. “What possible role could the Senate president have in hiring court officers?”

“He can recommend people to be hired, just like anyone else can,” Mulligan replied.

Throughout his cross-examination Wednesday, Sinnis upbraided Mulligan for playing it loosely with departmental paperwork, job postings, and interviews – the same sorts of practices prosecutors have tried to hang around O’Brien’s neck as criminal acts. Sinnis said Chiarenza, who came to the Trial Court by way of Travaglini’s office, was later promoted without being interviewed. When he questioned why certain Trial Court employees were signing hiring documents, Mulligan conceded that he should have signed the documents personally. (The prosecution’s mail fraud case rests on documents O’Brien signed, and mailed, to Mulligan.) And Mulligan admitted to hiring his legislative liaison, Elizabeth Cerda, without publicly posting the job first. Cerda, who is the wife of Middlesex Sheriff Peter Koutoujian, was hired on the same day she submitted her job application – a practice prosecutors used against O’Brien last week.

Sinnis also questioned whether Mulligan was paying closer attention to O’Brien’s hires than he was to his own. Sinnis seized on Mulligan’s testimony Tuesday, in which Mulligan questioned how John Chisholm, who was sponsored by former Sen. Jack Hart, could go from having a disastrous job interview to becoming “a Probation savant, a Probation genius” a week later.

“You went on for 30 minutes about Mr. Chisholm’s answers, and their incompleteness,” Sinnis said. “You’re using that same level of scrutiny on court officers? Or do you have a lesser degree of scrutiny for court officers because they’re your people?”

Shaky Ryan insists jobs used to help DeLeo

Shaky Ryan insists jobs used to help DeLeo

Legislative liaison at Probation fuzzy on details

Defense attorneys on Tuesday raised questions about the accuracy of testimony by a top aide to former Probation commissioner John O’Brien, but legislative liaison Edward Ryan stood by his claim that Probation jobs were steered to the office of Rep. Robert DeLeo in 2007 and 2008 to help DeLeo win a fight for the speaker’s job in 2009.

Stellio Sinnis, who represents O’Brien, said Ryan had never mentioned the DeLeo connection in his previous testimony under oath before a federal grand jury and before an independent counsel brought in by the Supreme Judicial Court to review Probation hiring. DeLeo has repeatedly denied the jobs-for-votes arrangement outside the courtroom.

Sinnis at one point asked Ryan if his recollection of steering jobs to DeLeo’s office to help in the speaker fight was the “best of his memory” or the memory of federal prosecutor Karin Bell. Bell objected to the question but Judge William Young overruled her objection.

“Absolutely not,” Ryan replied.

Still, Ryan’s memory seemed fuzzy on a lot of other points. He testified on Monday that several lawmakers contacted him about people they wanted to steer to new jobs at the agency’s Electronic Monitoring Office in Clinton. On Tuesday, Ryan said he contacted several of the lawmakers to tell them about the jobs, although he indicated they seemed to have some knowledge of them before the call.

Ryan testified on Monday that O’Brien had ordered him to refer all House members looking for Probation jobs to Leonard Mirasolo, a top aide in DeLeo’s office. He seemed confused on when that happened on Tuesday, but documents displayed by defense attorneys seemed to suggest that happened as early as 2006, three years before the vote for speaker.

Ryan also seemed confused about how many House members he referred to Mirasolo. Under intense questioning by Sinnis, he had difficulty coming up with an estimate, eventually settling on 25 to 30 referrals between late 2006 and 2008. He also said he didn’t refer all the calls he received from House members about jobs to Mirasolo, which was puzzling because that’s what he said O’Brien had ordered him to do.

“Are we making things up as we go along?” Sinnis asked at one point.

“Absolutely not,” Ryan responded.

But as weak as Ryan was on some details of his dealings with DeLeo’s office, he was adamant about the politicization of hiring at Probation and his claim that jobs were being used at Probation to help elect DeLeo speaker.

Ryan said jobs were given to Rep. Harold Naughton of Clinton and former Rep. Robert Rice of Gardner expressly for the purpose of electing DeLeo speaker. Both lawmakers previously testified that they took advantage of the Probation job offerings to place people in positions but said the jobs did not influence their votes for DeLeo as speaker.

Ryan said his understanding of what the jobs were being used for was based on conversations he had with O’Brien and Mirasolo.

Ryan was also clear about the role of politics in Probation hiring, explaining that O’Brien would base hiring decisions on little else. “He would base it upon the political influence that the candidate had received and he would rank them how he wanted them to finish in the interview process,” he said.

Witness for the prosecution

Witness for the prosecution

Robert Mulligan has very clear memories of his years in bureaucratic combat with former Probation commissioner John O’Brien

Robert Mulligan leaving the courthouse on Tuesday.

Federal prosecutors at the trial of former Probation commissioner John O’Brien finally got their dream witness on the stand.

After weeks of trying to extract testimony from lawmakers with faulty memories, reluctant coconspirators with immunity agreements, and judges with limited knowledge of hiring policies, Robert Mulligan took the stand on Tuesday and started helping prosecutors pull their sprawling case together. Mulligan, the former chief justice for administration and management at the Trial Court, was articulate and detailed in his responses. He appeared to have a very clear memory of his years in bureaucratic combat with O’Brien over hiring.

And once Mulligan got started, it was hard to shut him up. Defense attorneys repeatedly objected to questions posed by prosecutors, but Mulligan often ignored the objections and plowed ahead with his answers. At one point, O’Brien defense attorney Stellio Sinnis urged Judge William Young to instruct Mulligan to stop talking when an objection is made.

Mulligan also offered some interesting insights about O’Brien, who Mulligan said he has known for more than 25 years. Mulligan said he knew O’Brien as a “well-met fellow, fairly genial” prior to taking the job of chief justice in 2003. But his opinion of the Probation commissioner changed at a meeting the two men held just before Mulligan formally began overseeing the Trial Court and O’Brien. Mulligan said O’Brien at that meeting made a surprising proposal, which O’Brien rejected. Mulligan wasn’t asked to detail that conversation, but it came at a time when O’Brien was suing the Trial Court and an individual judge for tossing him in jail for failing to conduct lab tests ordered by the judge. He reportedly wanted the Trial Court to pay him a financial settlement.

“After that, our relationship changed,” Mulligan testified. “It was oppositional from the time I took office.” He said meetings between the two men were tense and difficult. “It seemed everything between us became a contest,” he said.

Mulligan said O’Brien seemed to have close relationships with some lawmakers. He described O’Brien as elated when Rep. Thomas Finneran became speaker of the House in 1996. He recalled O’Brien introducing him to then-Rep. Robert DeLeo at a meeting in Mulligan’s office. And he remembered waiting years later to see DeLeo when he was speaker. As he was sitting in DeLeo’s outer office, past the time the two men were scheduled to meet, Mulligan said O’Brien came into the office and was immediately ushered in to see the speaker ahead of him.

The testimony so far in the trial of O’Brien and two of his top aides, Elizabeth Tavares and William Burke III, has focused primarily on efforts to steer politically connected job applicants through the hiring process and into jobs at the Probation Department. Mulligan spent most of his time on the witness stand Tuesday testifying about the hiring rules at the agency and, through correspondence between himself and O’Brien, his battles with the commissioner over hiring practices.

Probation had an entire handbook of hiring procedures, but Mulligan said it all boiled down to one thing: merit-based hiring. “You’re looking for the very best person you can get,” he said.

The Legislature in 2001 shifted hiring authority at Probation away from justices at local courts to O’Brien. The switch meant O’Brien could appoint who he wanted to Probation jobs but Mulligan had to approve the hires, basically confirming that all rules and procedures were followed. Mulligan said O’Brien bridled at his oversight and was constantly trying to gain even more control over hiring. The correspondence between the two men was often a form of verbal sparring.

Around 2004, for example, Mulligan said O’Brien began agitating for the removal of judges from hiring panels for Probation jobs. When Mulligan refused to go along with that, the chief justice said O’Brien scheduled 3,800 interviews for 52 Probation jobs in an attempt to overwhelm judges and get them to voluntarily withdraw from the hiring panels. Mulligan responded by ordering O’Brien to winnow down the list of job applicants to more manageable levels.

Mulligan said he became increasingly suspicious about the fairness of the Probation hiring process. He said he didn’t have time to investigate most hires, but occasionally his staff would red-flag some hires and he would investigate them further. He estimated he reviewed about 20 hires.

In 2005, Mulligan said, he reviewed the interview scoring sheets for an assistant chief probation officer job at the Fall River District Court. Mulligan said the interviewing panel at the court passed along eight candidates for the final interview. He said the No. 1 choice of all three members of the court panel was Donelle Gomes, who Mulligan identified as a Cape Verdean with a BA and a master’s degree.

Mulligan said a candidate named Lucia Ligotti came in tenth in the rankings, but the Probation Department’s representative on the panel nevertheless tried to get Ligotti added to the list of eight going on to the final interview. Mulligan said Ligotti was the daughter-in-law of the “clerk for life” at Hingham District Court, Joseph Ligotti. Mulligan said Ligotti didn’t get the job; the post went to an applicant named Larry Lopes instead, much to the chagrin of Mulligan, who felt it should have gone to Gomes. “If I could have appointed her, I would have. She deserved it,” he said.

During April 2006, Mulligan said he scrutinized five appointments made by O’Brien to make sure the Trial Court’s hiring manual was being followed. According to correspondence with O’Brien that was introduced into evidence, Mulligan ended up approving three of the appointments and rejecting the other two because he said they did not meet the post’s minimum qualifications.

“It is not enough that an applicant technically meet the minimum qualifications; the applicant should, by an objective standard, be the most qualified for the position,” Mulligan wrote to O’Brien.

In October 2006, correspondence between Mulligan and O’Brien showed the two men were battling over the appointment of John Chisholm to a job at the Suffolk County Probate and Family Court. Chisholm had been sponsored for the job by former Sen. John Hart. What disturbed Mulligan was that Chisholm performed poorly during the first interview panel but then a week later did extremely well when interviewed by two top aides to O’Brien.

“He all of a sudden became a Probation savant, a Probation genius,” Mulligan said. “It just seemed incredible to me. It didn’t make any sense to me.”

Mulligan said he bumped into Patricia Walsh, one of the two O’Brien aides who handled the final interview with Chisholm. He said he brought her into his office and grilled her for 45 minutes to discover the cause of what he called the “disconnect” between the two interview panels. But Mulligan said Walsh “didn’t give him an inch.” He said she claimed nothing was amiss. He said she insisted no one had fed her names of preferred candidates ahead of the interview or directed her to score Chisholm well.

A letter from O’Brien to Mulligan on Oct. 11, 2006, indicated the Probation chief was furious about what he called the “unprecedented interrogation” of Walsh by the chief justice and threatened to go to the Supreme Judicial Court to make the case that Mulligan was exceeding his authority. Mulligan said he subsequently approved Chisholm’s hire because he had no concrete evidence to overturn it.

“If I had a glimmer of a reason for not approving it, I would have,” he said.

Previously at the Probation trial, Francis Wall, a former top aide to O’Brien who teamed up with Walsh on the final hiring panel for Chisholm, said the two of them were routinely given the names of preferred candidates and told who to score highly.

Another case of what Mulligan called interview panel disconnect occurred in connection with a Worcester Superior Court probation job. A letter from Mulligan to O’Brien cited a candidate who was ranked 18th, 13th, and 10th by the three interviewers at the local court yet that candidate was vaulted into the top five by the interviewers from O’Brien’s office. Mulligan’s letter said the candidate was eventually submitted to him for appointment.

Mulligan said he urged O’Brien to somehow blend the findings of the two interview panels, so the recommendations of the officials at the court who would be working with the Probation worker would not be ignored by the interviewers from O’Brien’s office. He said O’Brien didn’t go along with that proposal or others he made.

Indeed, O’Brien was defiant in a Jan. 25, 2007, letter to Mulligan that the hiring process at Probation was pristine. “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,” O’Brien wrote.

Mulligan said he did not agree with O’Brien’s assessment.


Transferability – Toward the close of Tuesday’s testimony, Mulligan began explaining the Beacon Hill concept of transferability, which allowed him as the chief justice of the Trial Court to transfer funds that were surplus in one department within the court to another division running a deficit. He said he transferred $3 million from other divisions to Probation in fiscal 2004 to cover a deficit. In 2005, he said he needed to take $1.3 million from O’Brien’s budget to cover deficits elsewhere. He said he sent DeLeo a note about the impending transfer of funds. The following year, he said, his power to transfer funds out of the Probation Department was revoked by the Legislature.

Intriguing – Mulligan said he regularly met with former state Sen. Steven Panagiotakis, the former chair of the Senate Ways and Means Committee. At one meeting, he said, the subject of hiring practices at Probation came up. Just before Mulligan started to reveal what he and the senator discussed, Judge Young called a sidebar with all the attorneys and prosecutors subsequently dropped the matter.