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News and Features: Online exclusives

Judge doubts case against O’Brien aides

Says he hasn’t seen evidence ‘beyond reasonable doubt’

BY: Jack Sullivan

The judge in the federal corruption trial of former Probation commissioner John O’Brien put prosecutors on notice that he has yet to see any evidence “beyond a reasonable doubt” supporting mail fraud, racketeering, and conspiracy charges against the two O’Brien deputies who are co-defendants.

Judge William Young said he is not making a ruling regarding a directed verdict at this point but warned prosecutors they have to bring a more solid case against Elizabeth Tavares and William Burke III in the time they have left.

“I don't see how on the strength of the record you can say [Burke] aided and abetted in any of those hires,” Young told Assistant US attorney Fred Wyshak. “I don't see evidence. It may come but I don't see evidence.”

Young said there has been much testimony of Tavares passing on names of preferred candidates to interviewers but the prosecution had yet to prove that it met the test required to prove racketeering or mail fraud. He likened it to a murder case he sat on where part of the racketeering charge was a gruesome murder. He said while prosecutors proved the defendant executed the murder, it was not part of the racketeering. Rather, he said, “It was a beef over a girl.”

“Your case to try, but you're trying to show conspiracy in racketeering,” Young said. “I don't see any evidence, where it now stands, where it is going to pass [the necessary legal] test.”

Wyshak insisted more will come out about Burke in the phase they are now entering regarding hiring for the Electronic Monitoring Office [ELMO] in Clinton and said they have already introduced evidence they will tie into the charges when it comes time. As for Tavares, Wyshak steadfastly disagreed with Young, insisting the statute on bribery and conspiracy do not hold the standard for proof Young is saying.

Young also said he had concern about the massive number of decisions jurors will be asked to decide. He pointed out that if the indictment continued to stand, jurors would have to unanimously agree on 89 separate findings covering 42 different “predicate acts” – actions that are the foundation for racketeering and conspiracy charges – in order to render a verdict.

Wyshak, who previously removed two mail fraud charges from the case, agreed to eliminate several more of the alleged rigged hires in the ELMO division and indicated he would look at where the case could be winnowed further to save time.

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