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Reading between the lines

Opening statements in probation trial notable for what was unsaid

BY: Jack Sullivan

Opening statements in the long-awaited corruption trial of former state Probation commissioner John J. O’Brien were eye-opening not only for what the lawyers said but for what they didn’t say.

But the clear takeaway from the prosecution and defense’s first presentation to the jury is that O’Brien, Elizabeth Tavares and William Burke III are not the only ones on trial: Legislators, judges, and the political patronage system will all be held out for judgment over the next two months and their fate hangs in the balance as well.

U.S. District Court Judge William Young, as he said he would, instructed the jurors that political patronage is not a crime and failure to follow hiring procedures laid out by the state Trial Court, while bad practice for maintaining employment, is not a prosecutable offense either.

“That [the hiring manual] has force,” Young told jurors as he instructed them about the laws regarding the offenses of mail fraud, racketeering, and conspiracy that are the focus of the indictment. “If you disobey that, if you don't follow that, people can be disciplined, people can be fired. But it's not a crime, it's administrative practices.”

Assistant U.S. Attorney Fred Wyshak agreed patronage is not a crime but said the trial is not about patronage because, he said, the probation department is prevented by law from partaking in patronage. He laid out a devastating picture of a rogue agency and its leaders who “handed out jobs like lollipops” to friends and families of powerful people, especially lawmakers, in exchange for more money, power, and autonomy for the agency.

“The defendants funneled jobs to individuals who were referred by legislators,” Wyshak said during his 45-minute opening. The three defendants “treated jobs as a political currency. They used that currency to curry favor with and influence members of the Legislature. John O’Brien was on a little power trip. He wanted independence from the judges who controlled his agency…Hiring in the probation department was not based on what you knew but who you knew.”

Wyshak ticked off a number of people he said got jobs despite having question marks about their qualifications. He specifically mentioned Pat Lawton, the son of a former state representative who is now a judge and whose family has a long history of political involvement in Plymouth County. Wyshak said Lawton got the job because of support from Senate President Therese Murray, despite the fact Lawton was a heroin addict and, after his initial interview, didn’t even place in the top eight candidates, a position that was necessary to have your name forwarded for the next round.

Wyshak also tossed out the name of Doug MacLean, the son of former state senator William “Biff” MacLean, who also got a job because of his father despite a drug history. The biggest surprise, though, was when Wyshak talked about Sen. Mark Montigny securing a probation job for his then “21-year-old girlfriend who’s barely qualified.”

“I'm not sure the term patronage as it's commonly used even applies here,” Wyshak told jurors. “This is about their almost total abdication of their responsibilities. This is about people like Jack O’Brien giving his responsibilities away to the Legislature.”

But for every piece of the indictment Wyshak meticulously laid out for jurors, Stylianus Sinnis, O’Brien’s court-appointed federal public defender, made sure to point out the what Wyshak avoided saying.

“They didn't get a single cent, not one dime for anything the government says they did,” Sinnis said. “[Wyshak] never said the people weren't qualified. The government in hindsight is trying to criminalize a normal routine hiring practice.”

Sinnis said even though Lawton returned to using drugs and lost his job, he was hired because he had, among other things, a law degree, making him eminently qualified for the position. For each of the hires Wyshak said were colored by connections, Sinnis pointed out they were qualified for the position and said what gave them a leg up was recommendations from legislators and others. That, he said, is not a crime.

“Did they hire unqualified people? Absolutely not,” Sinnis said. “Did he hire people recommended by influential people? He did and it's not a crime. When you applied for the job, your interview mattered, your qualifications mattered and, yes, recommendations mattered. That's the hiring process, that's not a crime. It would be foolish not to consider what smart, intelligent people feel.”

But, like Wyshak, Sinnis also made a couple statements that were notable for what wasn’t said. He told jurors since O’Brien was fired, the state Trial Court has had three commissioners. “That should tell you something,” he said.

But what he didn’t tell them was that the first two were acting commissioners who reluctantly took the jobs while the department was being overhauled while a new job description was written for the office of commissioner in the wake of O’Brien’s tenure.

Sinnis also noted that O’Brien was appointed by the late Judge John Irwin, a former Chief Justice of Administration and Management (CJAM) for the Trial Court. But what might come back to bite Sinnis is the fact that after he was appointed, O’Brien hired one of Irwin’s daughters and a nephew for probation jobs.

Jeffrey Denner, one of Tavares’ lawyers, said another thing Wyshak failed to mention is why his client, O’Brien, and Burke are the only ones facing charges, noting that a parade of people will take the witness stand who are viewed as “unindicted co-conspirators” but were given immunity in exchange for their testimony. John Amabile, Burke’s lead attorney, said pointedly it was a case of “one way bribery,” belittling one of the charges by prosecutors.

“There’s no judges charged, there’s no legislators charged,” he said.

Wyshak told jurors that Judge Robert Mulligan, who was O’Brien’s boss as CJAM, will testify he believed O’Brien was making hires by the book and had no idea he was signing off on hires that O’Brien certified as the best candidate without knowing the system was rigged. But Amabile scoffed at the idea that Mulligan was unaware there was patronage afoot. Amabile said defense lawyers will show that Mulligan acted the same way, accepting recommendations from powerful people, when hiring court officers.

Amabile also pointed out what he said was “the exquisite irony in this case.” He noted that the trial was taking place in the John Joseph Moakley Courthouse, named after the longtime South Boston congressman noted for going to bat for constituents in getting jobs, and that many had driven through the Thomas P. O’Neill Tunnel on their way in, which got its name after the legendary pol whose motto was “all politics is local.” Amabile said the two were “revered legislators” for their ability to provide constituent services, including securing jobs for friends and family.

“They helped their constituents and they get a tunnel named after them,” Amabile said. “Billy Burke does the same thing and he gets a federal racketeering indictment.”

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