US Attorney Carmen Ortiz is vowing to continue bringing corruption charges against public officials, but the overturning of her convictions of former Probation commissioner John O’Brien and two of his top aides is another sign that federal prosecutors will probably not be able to lock up pols unless they actually catch them with their hands in the cookie jar.
Ortiz proved fairly convincingly that O’Brien and his aides rigged hiring at the Probation Department to steer jobs to politically connected people. But that’s not a federal crime, so the US Attorney’s office alleged O’Brien violated state laws that, when bundled together, added up to violations of the federal racketeering statute. Specifically, Ortiz’s office argued that O’Brien gave illegal gratuities (jobs) to state officials and committed mail fraud by sending rejection letters to unsuccessful job candidates that gave the appearance the selection process was on the up and up.
In its ruling on Monday, the US Court of Appeals, citing a previous federal decision involving former governor Robert McDonnell of Virginia and a Massachusetts Supreme Judicial Court decision involving Rep. Angelo Scaccia of Hyde Park, said Ortiz’s office “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.”
On the illegal gratuities charges, the court held that Ortiz’s office failed to show a direct link between the job given and an official act of a politician. Citing another federal decision, the court held that “the government must prove a link between a thing of value conferred upon a public official and a specific official act for or because of which it was given.”
Rep. Thomas Petrolati, a high-ranking House official from Ludlow, filed a budget amendment in April 2000 providing funding for 14 new jobs at the Probation Department. Seven months later, in November 2000, O’Brien appointed Petrolati’s wife to a top position at the agency. The court held that no evidence was presented at trial indicating O’Brien knew of Petrolati’s connection to the amendment or that Petrolati had changed his voting pattern in anticipation of his wife receiving a job. In other words, there was no direct link between Petrolati’s amendment and his wife’s hiring.
O’Brien gave Rep. Robert DeLeo of Winthrop jobs to hand out to his colleagues, but the Appeals Court held that no evidence was presented showing that DeLeo took any action on behalf of O’Brien or that O’Brien pressured DeLeo to do so. Just building up goodwill with the man who would go on to become House speaker was not enough; Ortiz needed to show DeLeo performed an “official act” in return for the jobs.
On the mail fraud charges, Ortiz argued that the letters sent to those rejected for positions at Probation represented use of interstate mail as part of a scheme to defraud. Ortiz argued the rejection letters helped maintain the facade of a merit-based system, but the Appeals Court did not agree, saying the letter “furthered neither the perpetration nor the perpetuation of the scheme.”
The Appeals Court held that although O’Brien’s actions “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.”
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