O’Brien conviction overturned; DeLeo cleared

Ruling says prosecutors were off-base in bringing federal charges in probation scandal

A US APPEALS COURT overturned the convictions of former state probation commissioner John O’Brien and two top aides, saying prosecutors failed to prove key elements of their case and should not have been allowed to apply federal criminal statutes to violations of Massachusetts laws.

“We can conclude that O’Brien, along with the other defendants and many other members of the Probation Department, misran the Probation Department and made efforts to conceal the patronage hiring system,” Judge Juan R. Torruella wrote in his decision for the three-judge panel. “But not all unappealing conduct is criminal.”

The decision also dismissed allegations that House Speaker Robert DeLeo, who was named an unindicted co-conspirator by prosecutors during the trial, was given jobs to distribute by O’Brien. DeLeo at the time was chairman of the House Ways and Means Committee, and the government suggested he handed out jobs to lawmakers in exchange for support for his run for speaker. Prosecutors charged O’Brien violated the state statute on illegal gratuities by offering jobs in exchange for favorable treatment on his office’s budget and to support legislation to give him more power.

“All the Government demonstrated, however, is that O’Brien and DeLeo met,” Torruella wrote. “The evidence does not show, for example, that DeLeo subsequently introduced a bill based on either of O’Brien’s proposals or took some official act with respect to such a bill proposed by another legislator.”

DeLeo issued a statement Monday evening in which he said he was pleased with the court’s decision. “I am particularly grateful that the Court has found that no member of the Legislature had committed any impropriety in connection with the allegations in the indictment. It is unfortunate that for six and a half years other legislators and I have lived under the cloud of suspicion of having been involved in illegal activity. Today, the Court of Appeals has affirmed what I have said for the entire period – that neither I, nor to my knowledge any other legislator, had engaged in any wrongdoing. The decision of the court constitutes a complete exoneration for this institution and all of its members. These false and scurrilous allegations can now be given an appropriate burial.”

Christina Sterling, a spokeswoman for US Attorney Carmen Ortiz, said “the Court of Appeals agreed that the government provided evidence that ‘the defendants abused the hiring process to ensure that favored candidates were promoted or appointed in exchange for favorable budget treatment from the state legislature and increased control over the Probation Department.’ We are disappointed with the court’s decision and will continue to fulfill our responsibility to protect the public from corrupt officials by vigorously investigating and prosecuting  public corruption in appropriate cases.”

O’Brien and former deputy commissioners Elizabeth Tavares and William Burke were convicted in 2014 following a 10-week trial on multiple charges of racketeering, conspiracy, and mail fraud. They were charged with handing out Probation Department jobs as “lollipops” to gain leverage in a power struggle with Robert Mulligan, who was the chief justice of administration and management. Mulligan suspended the trio the day after a Boston Globe Spotlight story ran outlining some of the allegations.

O’Brien and Tavares were sentenced to prison, though neither served any time while awaiting their appeal. Burke was given probation.

While the 37-page decision outlined the reasons for overturning the conviction, the narrative made clear the actions of O’Brien and his aides were “distasteful” and might be something state prosecutors could pursue. Torruella took Ortiz’ office to task for trying to apply federal law to the matter.

“Although the actions of the defendants may well be judged distasteful, and even contrary to Massachusetts’s personnel laws, the function of this Court is limited to determining whether they violated the federal criminal statutes charged,” he wrote. “We find that the Government overstepped its bounds in using federal criminal statutes to police the hiring practices of these Massachusetts state officials and did not provide sufficient evidence to establish a criminal violation of Massachusetts law.”

Torruella wrote it was a “stretch” for prosecutors to say it was a violation of the federal racketeering and mail fraud laws for O’Brien to send rejection letters to job candidates who were not selected.

Torruella also rejected the government’s argument that O’Brien struck a deal with state Rep. Thomas Petrolati of Ludlow, who was then the speaker pro tempore, to hire the lawmaker’s wife for a job at the newly created Electronic Monitoring Office in exchange for Petrolati sponsoring budget amendments for the Probation Department. The court said there was no proven connection between the acts.

“The Government asserts that the jury could infer the necessary link based on Representative Petrolati’s sponsorship of the budget amendment and his wife being appointed a program manager,” the opinion said. “But seven months passed between these two events, and there was no evidence that O’Brien knew of Representative Petrolati’s connection to the budget amendment or that Representative Petrolati had ‘change[d]’ his ‘voting pattern’ in anticipation of his wife’s hire.”

The ruling also took trial Judge William Young to task for allowing the jury to ask so many questions during the course of the trial. While Torruella said the action did not factor into the ruling, he said letting the jurors put forth more than 280 questions and posing 180 of them to witnesses went too far. A previous ruling involving another trial by Young two decades ago approved his practice of allowing jurors to ask limited questions.

Torruella said some of the questions – such as why scores were changed for some candidates and whether someone was not on the final candidate list because they were bumped by a favored candidate – went far beyond what should be allowed in any proceeding.

“The content of many of the questions jurors asked is troubling,” he wrote. “Juror questions of this type elicited not just clarifications but gap-filling evidence…If a district court allows jurors to ask questions, it must ensure that the jurors do not turn into fact gatherers rather than factfinders.”