Patronage on Trial

Patronage on Trial

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

O’Brien judge bows out

O’Brien judge bows out

Saylor recuses himself but rips defense lawyers for being manipulative

The federal judge in the corruption trial of former Probation commissioner John O’Brien recused himself Thursday but not before excoriating defense attorneys for bringing the motion as retaliation for ruling against them in a number of prior motions.

US District Court Judge F. Dennis Saylor IV says he based his decision on the fact that the defense may call as a witness his colleague and friend US District Court Judge Timothy Hillman. In his order, Saylor wrote, “the test is that of a reasonable and objective observer who is fully informed of all the relevant facts,” who must decide if his friendship with Hillman could cloud his ability to be impartial.

But Saylor, noting defense attorneys knew at least 15 months before their claim that Hillman was a potential witness, made clear his anger over the timing of the motion for recusal and what he sees as the motive behind it. Saylor included in his ruling a description of what he calls repeated false assertions by defense attorneys in a meeting in his office that Hillman made a call on behalf of his own daughter to get a job with probation. Defense attorneys later formally withdrew that claim in writing.

Saylor said Hillman’s name was brought up as a witness only after he ruled against motions by the defense for a continuance and then denied a defense motion for recusal because Saylor was once a partner at the same firm as Paul Ware, the lawyer who authored the scathing independent report that led to O’Brien’s firing and subsequent indictment.

“Counsel acknowledge that they were well aware that Judge Hillman and I are colleagues on a relatively small court, and that we were the only two judges in Worcester (save the bankruptcy judge) for a period of more than six years,” Saylor wrote. “They contend, however, that they had no way of knowing that we had a friendly relationship until I specifically mentioned that fact during a hearing on January 24, 2014. That claim is scarcely credible. More to the point, it is objectively unreasonable.”

Saylor also granted a motion to delay the trial for one month, until April 28, while a new judge is seated and gets brought up to speed.

O’Brien and two top aides, Elizabeth Tavares and William Burke, are facing more than a dozen corruption charges stemming from a rigged hiring system at the Probation Department that favored candidates sponsored by elected and appointed officials. Prosecutors claim it was a fraudulent system designed to pump up the Probation budget and O’Brien’s autonomy in exchange for patronage hirings. Defense attorneys say they plan to call scores of witnesses, including Hillman, who referred or wrote recommendations for 22 people, to show it is the way things are done on Beacon Hill and in government in general.

In concluding that recusal was the right course, Saylor did little to hide his contempt for the defense team’s tactics that led him to that decision.

“Defendants’ recusal motions could hardly have been more ill-timed; the case was indicted nearly two years ago, and is now less than three weeks away from the start of trial,” Saylor wrote. “The government, not just the defendants, has an interest in a speedy trial, and for that matter so does the public. No matter where this case is reassigned, delays — possibly significant ones — are likely to follow. Another cost is that defendants will inevitably reap the full reward of an untimely tactical maneuver. Whether they deliberately waited to raise the issue, or held back out of inattention or negligence, is unimportant; the result will be the same.

“The resulting and inevitable delay in the trial of this matter is unfortunate. But the trial will begin at some point; that day will not be postponed forever.”

Possible Probation witness lists filed

Possible Probation witness lists filed

DeLeo, Murray, Weld, Ireland named

Defense Witness List
Prosecution Witness List

The prosecution and defense teams in the federal corruption trial of former Probation commissioner John J. O’Brien on Tuesday filed lists of people they may call as witnesses, including House Speaker Robert DeLeo, Senate President Therese Murray, Rep. Garrett Bradley, former Gov. William Weld, and Roderick Ireland, the chief justice of the Supreme Judicial Court.

The lists, requested by the judge in the trial to determine if he has any conflicts with potential witnesses that might force him to recuse himself, is of special interest to Massachusetts political observers because defense lawyers on Monday revealed that prosecutors had granted immunity to a number of lawmakers in exchange for their testimony. It is unclear from the names on the prosecutors’ list who received immunity and who did not. A grant of immunity does not mean someone has committed or is believed to have committed a crime, but it protects them from possible prosecution should they say something that could trigger charges.

Judge F. Dennis Saylor IV ordered both sides to submit the lists as he considers a motion by defense lawyers to recuse himself from the trial because of his friendship with Judge Timothy Hillman, who Saylor worked with when both were in federal district court in Worcester.

The defense list is the most expansive and includes 65 current or former legislators as well as nearly 100 current or former judges, including Ireland. The defense says it intends to call DeLeo and Murray but their names do not appear on the government’s list. A spokesman for DeLeo said on Monday that the speaker did not receive immunity and was not asked by prosecutors to testify. A spokeswoman for Murray on Monday did not return a call for comment.

Prosecutors listed 18 lawmakers, including members of DeLeo’s leadership team such as Bradley, a former prosecutor whose wife is a judge, and Rep. David Nangle, vice chairman of the House Ethics Committee. The list from the government names three senators who have left public office, including former Sen. John Hart of South Boston.

Among the surprises was who was not on prosecutors’ list: Rep. Thomas Petrolati, the former speaker pro tempore who has been dubbed the “King of Patronage” for his involvement in getting people jobs. Defense attorneys included Petrolati on their list.

Attorneys are typically required to file a list of potential witnesses as a trial begins in order to allow their opponents to question jurors if they know someone who might be a witness. But that process is usually done at the start of the trial, which is still a month away.

The lists filed on Tuesday give each side an early heads-up on what their counterparts might be planning in strategy. But the lists are not binding. Because someone’s name appears on a list does not mean they will be called to testify, nor does the absence of someone’s name mean they have escaped a date on the witness stand.

Lawmakers get immunity

Lawmakers get immunity

Federal prosecutors have granted immunity to state legislators in the upcoming racketeering trial of the former probation commissioner and his aides.

Lawyers for former Probation commissioner John O’Brien revealed that a number of state legislators have been granted immunity by federal prosecutors in exchange for their testimony in the one-time powerful official’s racketeering and corruption trial.

The revelation came during an often-contentious hearing on a motion by O’Brien’s attorneys for Judge F. Dennis Saylor IV to recuse himself from the trial because of his relationship with another federal judge who could be called as a potential witness. O’Brien attorney Stellio Sinnis made a fleeting and unchallenged reference that prosecutors “gave immunity to various legislators” to entice them to testify before the grand jury and in the trial. The federal prosecutors are alleging that O’Brien hired people favored by those in power in the Legislature in return for lawmakers approving budgets and legislation favorable to the Probation Department.

Sinnis, a federal public defender, said he intended to call US District Court Judge Timothy Hillman, a former state District and Superior Court judge whose name has been tied to at least 22 candidates as a reference or on a recommendation. Sinnis said Hillman’s testimony would buttress the defense’s argument that hiring for government positions often requires a candidate to have support from officials in all areas of public life.

“It is, if you’ll pardon me, your honor, how you become a judge, how you become a US Attorney, how you become a public defender,” Sinnis said, ticking off names of people on O’Brien’s job sponsor lists such as Hillman, Attorney General Martha Coakley, former Attorney General Scott Harshbarger, and former US Attorney Michael Sullivan.

A number of lawmakers have been identified as recommending or referring scores of candidates for hiring at the patronage-laden Probation department. Among those is House Speaker Robert DeLeo, who recommended his godson, Brian Mirasolo, for a probation job. DeLeo’s spokesman on Monday said the speaker did not receive immunity.

“The speaker was not a target, was not asked to testify and therefore had no reason to be granted immunity,” DeLeo’s spokesman, Seth Gitell, said in an email.

A spokeswoman for Senate President Therese Murray, whose name has also surfaced in the Probation probe, did not return a call for comment.

Sinnis did not identify the legislators who received immunity and neither the prosecutors nor Saylor disputed the reference. It was the first indication what role state lawmakers are going to play in the upcoming trial since none has been charged with any crime. Immunity would compel the lawmakers to testify but protect them from prosecution for anything they say.

O’Brien and two of his former deputies, Elizabeth Tavares and William Burke, are facing more than a dozen racketeering, bribery, conspiracy, and mail fraud charges related to the hiring practices at the scandal-ridden Probation Department. Much of the evidence came from a report by independent counsel Paul Ware, who was a former partner with Saylor at the Boston law firm Goodwin Procter LLP.

Earlier this month, Saylor dismissed the first motion for his recusal that focused on his partnership with Ware at Goodwin Procter, saying he could be impartial and the relationships cited by the defense were tenuous. During his ruling on the Ware challenge, Saylor said he had a “much closer relationship” with Hillman because they had been colleagues at the two-judge Worcester federal courthouse. Saylor said he was friends with Hillman but not Ware, an admission that prompted defense attorney’s to being focusing on his ties to Hillman.

The hearing on Monday was often heated, with Saylor at one point yelling in a booming voice at Sinnis to “be quiet” and admonishing him for interrupting. Saylor had also yelled at defense attorneys in a previous sidebar conversation, two outbursts which prompted Burke attorney John Amabile to question whether Saylor is “so entwined in this that you’ve lost your ability to conduct these proceedings in a fair manner.”

The hearing, which lasted for more than 90 minutes, forced both prosecutors and defense attorneys to reluctantly outline a roadmap of their strategy for the trial, slated to begin on March 24. Defense lawyers said Hillman would be asked about his comment that, before Probation took over the direct hiring of probation officers, judges themselves would do the hiring. During an interview with defense attorneys, Amabile said Hillman told them there was a “two-fer” system in hiring, with lawmakers appropriating enough money for the hiring of two Probation officers and judges would be allowed to pick one and lawmakers the other one. “You get one and I get one,” Amabile said, paraphrasing Hillman.

Assistant US Attorney Robert Fisher said Hillman’s testimony would be irrelevant to what prosecutors are alleging and unaffected by his relationship with Saylor. Fisher said it made sense for state judges, like Hillman was at the time, to recommend people for Probation jobs and promotions because of their knowledge of the job.

But, Fisher said, prefacing what prosecutors will try to prove, it didn’t matter who made recommendations because “to date, we haven’t found one person who said their references were actually called.”

“If that person got the job, I guarantee you someone more powerful than Judge Hillman or someone more powerful at the Legislature made the recommendation,” Fisher said.

The two sides also revealed that former House Speaker Thomas Finneran testified before the grand jury that the Legislature changed the state court’s power structure in 2001 to give O’Brien more authority over hiring. Prosecutors have contended that O’Brien was given more hiring power by lawmakers so they could place more people in jobs at the agency. But in court on Monday the lawyers said that Finneran told the grand jury that the hiring change was made because the Legislature was angry with the judges because “they screwed up” a $75 million grant from the Legislature to launch a new computer system. Sinnis said Hillman would be central to testifying to that scenario.

“I’d rather call Judge Hillman than ex-Speaker Finneran for reasons that are obvious to all,” said Sinnis, without mentioning Finneran’s guilty plea for lying under oath about his involvement in a legislative redistricting process.

Fisher scoffed at the reference to Finneran, noting Finneran’s longtime ties to O’Brien as well as his criminal conviction, in which he pled guilty to obstruction of justice in exchange for prosecutors dropping the perjury charge.

“That’s fraught with danger,” said Fisher, referring to Sinnis’s possibility of calling Finneran to repeat his grand jury testimony. “He’s a convicted perjurer,” he added, mischaracterizing Finneran’s conviction.

Saylor indicated he was not convinced that he needed to recuse himself from the case but ordered both sides to file a list by tomorrow night of federal and state judges, state officials, and attorneys practicing in Massachusetts who could be called as potential witnesses.

“Hundreds of people, possibly thousands of people, gave references,” said Saylor. “I must have a connection to some of them.”

DeLeo’s probation problem

DeLeo’s probation problem

Federal trial of Probation Commissioner John J. O’Brien likely to shine unflattering spotlight on the House speaker

Laughter and applause rained down on the House chamber on Wednesday. Beacon Hill lawmakers sent one of their own off in style, welcomed a new member to their ranks, and cheered on their leader as he outlined his legislative vision for the year. The man behind the rostrum, House Speaker Robert DeLeo, enjoyed the show.

DeLeo is the most powerful politician on Beacon Hill right now. He’s worked his whole career to get to this point. And the next few months could prove to be the most bruising period he’s ever experienced.

With his counterparts in the Senate and the governor’s office both lame ducks, Beacon Hill belongs to DeLeo right now. The House speaker has made it clear that he knows what to do with his position. Amid the hugs and the jokes Wednesday, DeLeo laid out an energetic agenda for his House. He spoke about raising the minimum wage, overhauling unemployment insurance, passing new curbs on guns and domestic violence, and spreading Boston’s economic boom across the rest of the state.

But DeLeo’s position atop Beacon Hill will soon prove to be a far less enjoyable place to be. For the second time in three years, Massachusetts’s political class is about to meet a blockbuster federal corruption trial.

The trial of DeLeo’s predecessor, former House speaker Sal DiMasi, only delivered a glancing blow to the current speaker. DiMasi used DeLeo’s budget committee to steer a lucrative software contract to a firm that DiMasi and a lobbyist friend were shaking down for hundreds of thousands of dollars in kickbacks. DiMasi turned DeLeo, his faithful lieutenant, into an unwitting conduit for his fraud. He then convened a pair of meetings at which DiMasi set to “figuring out how Bobby could become, how Mr. DeLeo could become, the next speaker,” according to the testimony of a former DiMasi and DeLeo campaign aide.

Still, the focus of the DiMasi corruption trial was on the former speaker himself, and the lengths the rest of the Beacon Hill establishment went to in appeasing (and enabling) him, rather than on the claque of politicians whose own power derived from their fealty to a gavel-wielding crook.

DeLeo was a bit player in the trial of the man who engineered his rise. Come late February, when former Probation Department chief John O’Brien and two top deputies stand trial on racketeering, mail fraud, and bribery charges, the spotlight will largely belong to the House speaker.

The federal inquiry into patronage at O’Brien’s Probation Department has darkened the State House for years. Whispers that DeLeo might fall in the Probation probe – the speaker’s godson appeared to be a prominent patronage hire of O’Brien’s – splintered the leadership team that DeLeo rode to the speakership. When the House gathered to hear DeLeo’s annual address last year, they’d just read reports that federal prosecutors were readying indictments against four sitting lawmakers. Those indictments never materialized. DeLeo’s attorney repeatedly denied that the speaker was a target of the federal inquiry, and DeLeo has not been accused of any crimes. He isn’t skating away, though.

DeLeo is the most prominent politician mentioned in the 58-page Probation indictment. His is likely to be the name most on prosecutors’ lips, the name that pops up most frequently as they compare Beacon Hill patronage to a mob racket. Very little of it will be flattering.

The federal case against O’Brien alleges that the former Probation chief oversaw a corrupt hiring system that illegally employed politically connected job applicants, in return for fattened budgets and increased political leverage with the Legislature. The feds are prosecuting O’Brien and his deputies under the federal RICO statute, a law normally aimed at street gangs and mafia figures. They’ve alleged that the act of trading jobs for fat budgets and political pull amounted to bribery, but they have not charged the recipients of these alleged bribes.

Federal prosecutors have said DeLeo participated in the fraudulent hiring of a dozen Probation employees, either as a direct sponsor of less-than-qualified job-seekers or as a conduit who helped political loyalists place their own people inside O’Brien’s department. They link seven hires each to DiMasi and Senate President Therese Murray.

The indictment against O’Brien highlighted the hiring of DeLeo’s godson, and the systematic effort to stuff a new Probation office dedicated to monitoring sex offenders and domestic violence offenders full of candidates chosen by DeLeo and his loyalists. At the same time that DeLeo’s House is readying new domestic violence protections, prosecutors will be alleging that O’Brien let DeLeo hand out jobs in Probation’s domestic violence office, in part to solidify his campaign for House speaker. DeLeo’s attorney has strongly denied any claims that DeLeo bought votes with Probation jobs.

Lawyers for O’Brien and his two deputies have made it clear that their case rests not in denying that their clients traded horses with Beacon Hill power players, but in arguing that this behavior is so commonplace that it can’t possibly be criminal. They recently filed a list of prospective court officers whose job ambitions came sponsored by local politicians. They look set to argue that O’Brien and his deputies can’t possibly be federal crooks because shoehorning the friends of powerful politicians into jobs is something every government bureaucrat does. Their defense will entail putting Beacon Hill’s political culture on trial. DiMasi’s defense team tried a similar tactic, and wound up seriously muddying the Patrick administration. This time, the mud looks earmarked for DeLeo’s lap.