By Andy Metzger
STATE HOUSE NEWS SERVICE
BOSTON -- Jurors who spent two and a half months listening quietly in courtroom 18 of U.S District Court set off Wednesday in pursuit of a verdict that will determine whether a key facet of state law enforcement criminally filled its ranks based on a candidate's political backers.
Many on Beacon Hill and in the various courthouses where the probation department functioned have arrived at their own conclusions about whether former Probation Commissioner John O'Brien, of Quincy, and two of his former deputies, Elizabeth Tavares, of Newton, and William Burke, of Hatfield, committed fraud and racketeering in their hiring decisions.
Judge William Young has repeatedly reminded the jury that patronage alone is not criminal. The allegation is that the patronage system was veiled with a phony interview process and the fraudulent certification that the Trial Court manual had been followed.
"This is a mud-slinging operation. This is throw-everything-but-the-kitchen-sink against these people and see if you can fool the jury," Burke's attorney John Amabile said in his closing argument. He said the only fraud was the prosecution's case.
The trial has featured 10 weeks of testimony, ranging from esoteric discussions of the budgetary process to memorable quotations, such as when former probation human resources chief Janet Mucci recalled O'Brien gesturing at the State House and saying, "They're a bunch of pigs. It's never enough.
The penalties could include prison time for the defendants, and political fallout for the pols who allegedly benefitted from the patronage system, most notably Speaker Robert DeLeo, who has emerged as the lawmaker most closely tied to the alleged crimes and the most outspoken critic of the prosecution.
On Monday, prosecutor Fred Wyshak revealed in open court, with the jury out of the room, that DeLeo is an unindicted co-conspirator, a designation Young agreed to allow and which does not require proof beyond a reasonable doubt.
According to prosecutors, DeLeo conspired with O'Brien to shuttle jobs to lawmakers to distribute to their friends and supporters ahead of his ultimately successful 2009 election as speaker - a charge DeLeo categorically denies and says the facts don't support.
"The United States Attorney has knowingly mischaracterized legislators' testimony as being false merely because the facts did not support her case," DeLeo said in a statement Tuesday. "What is, or at least should be, criminal is impugning the characters of accomplished and honorable public officials who have devoted their lives to public service on the testimony of a single immunized and non-credible witness."
U.S Attorney Carmen Ortiz, who sat in on some of the testimony, has declined to comment on DeLeo's public remarks or his role in the case. Ortiz reportedly came up in a markedly different context for the speaker, when, according to a December 2012 report in the Boston Globe, Gov. Deval Patrick raised the possibility of Ortiz running for governor in a closed-door meeting with DeLeo and Senate President Therese Murray.
Prosecutors scaled down their ambitions mid-trial, setting aside two counts and attempting to prove with varying amounts of evidence, that eight hires within the Probation Service were fraudulent. They say interviews were rigged to ensure politically connected applicants rose to the top, regardless of whether they were the most qualified.
Young, who served on the state court bench and as chief counsel to Gov. Frank Sargent before joining the federal bench, has observed the jury paid close attention during the complicated trial.
In 2010, when O'Brien was ousted for the alleged patronage following a Boston Globe expose, the probation department had about 1,800 employees, according to a report of independent counsel Paul Ware.
In addition to the fraud charges, Wyshak is hoping the jury is convinced O'Brien bribed lawmakers with the help of DeLeo. Another host of federal bribery charges could await the defendants after the verdict, as Young severed portions of the indictment.
Scores of witnesses testifying about being told the names of preferred candidates in the hiring process created a pointillist picture of top-down influence on hiring from O'Brien that didn't always jibe with how the interviewers viewed the candidates.
Few participants in the alleged conspiracy offered a more comprehensive picture of the allegedly widespread manipulation of scores. Francis Wall was one of the few, and singular in describing how he manipulated all the final round interview scores, ranking candidates according to O'Brien's preordination.
Wall was tagged as a "serial liar" by defense attorneys and admitted to regularly lying under oath at the arbitration proceedings brought on by those passed over for promotions.
Ed Ryan, who took on the role of legislative liaison for the department under O'Brien and still works as a manager in the electronic monitoring program, was another witness who was able to describe how the organization operated in the top rungs. Ryan said O'Brien would review lists of each candidate's political sponsors before determining the ranking that Wall and other final-round interviewers would then put in writing as a purported reflection of their performance.
Ryan also said he talked to an aide in DeLeo's office and O'Brien about the effort to elect DeLeo speaker, which involved targeting two central Massachusetts House members with probation job opportunities for candidates of their choosing. The two candidates recommended by Rep. Harold Naughton and former Rep. Robert Rice received jobs electronically monitoring sex offenders in a round of temporary hiring where few, if any, of the candidates were interviewed beforehand.
Prosecutors throughout have aimed to show the job recommendations from lawmakers were not merely influential, but were the only consideration, and that the power to appoint through patronage was transferable and a "political currency."
None of the state representatives who were offered the chance to recommend candidates said there had been any guarantee. If the secret patronage system was as rigid as prosecutors have suggested, orders were veiled in euphemism.
Inside and outside the department several witnesses said officials conducting interviews were told to give "consideration" or "a good look" to the favored candidates.
No cash is alleged to have changed hands in exchange for a job, though prosecutors have noted jobs are lifelong sources of income, and proposed changes in the law adjusting probation officials' pension level and O'Brien's pay would be financially beneficial. Those changes never took place.
Influence itself is a commodity on Beacon Hill, and many former state government officials have "cashed in" for lucrative lobbying jobs over the years. One complicating factor for prosecutors is many of the alleged actions taken by the defendants are completely legal on their own, and only take on potential criminality when viewed as part of the job-rigging scheme.
The defense gained inroads by presenting the allegedly fraudulent hires as "eminently qualified" for the posts, and making the question of "who was most qualified" an academic matter where reasonable people can disagree. The defense attorneys also cast O'Brien's top-down directives on whom should advance through the hiring process as an antidote to the parochialism that could influence the rankings at interviews conducted with local officials at a local court.
Retired Chief Justice of Administration and Management Robert Mulligan was O'Brien's foil and his superior within the Trial Court, battling with the commissioner over hiring decisions and budgetary matters. The defense conducted a brief trial-within-a-trial, accusing the mustachioed and immaculately dressed Mulligan of making his own patronage hires of court officers.
While certain of the allegedly fraudulent hires, such as Amy Parente, a former grand-niece by marriage to Rep. Marie Parente, were scarcely mentioned, others, such as Douglas MacLean, Kelly Manchester and Patrick Lawton gave testimony about non-professional aspects of their personal lives.
All three recommendations were shuttled through Senate President Therese Murray's office where Francine Gannon, a former longtime aide to the late Speaker Thomas "Tip" O'Neill, monitored their hiring.
Sen. Mark Montigny had recommended his young girlfriend, Manchester, for a post in the New Bedford family court, sometime after recommending MacLean. MacLean is the son of Montingy's predecessor in the state Senate, and said he had spiraled into heroin addiction and went to jail before cleaning himself up and working on drug abuse issues for the former Bristol County district attorney.
Lawton, the son of a prominent Brockton family, had used drugs before his hire and became a heroin addict while on the job at a family court in Brockton. Neither Lawton nor MacLean work at the probation department anymore, though Manchester was described in glowing terms by the former presiding judge of the court.
Young generally disallowed discussion of post-hiring performance in the trial.
Family court probation officers generally help ensure people who owed child support were looking for work and mediate between couples going through a divorce. Probation officers in the district and superior courts monitor offenders, reporting violations to the judge.
Defense attorneys, some of whom regularly appear in state courts, have contended that patronage had governed the hiring of probation officers and court officers long before O'Brien became commissioner in 1998 and before the Legislature gave him appointing authority a few years later. Some witnesses have regularly agreed to the prevalence of patronage before O'Brien made appointments, including Judge Bertha Josephson who recalled overhearing former Superior Court Chief Justice Suzanne DelVecchio ream out Rep. Salvatore DiMasi for not recommending quality candidates.
Wall said patronage used to be shared between local lawmakers and the presiding judge, who had hiring authority until the fiscal year 2002 budget granted that power to the probation commissioner. Wall himself was hired on a temporary basis by the controversial late presiding judge of Dorchester District Court whom he played hockey with.
Judge Paul King, the brother of Gov. Ed King, had a reputation as a taskmaster and later was found to have violated the Judicial Canon for an array of improprieties, including regularly urinating in the parking lot of a Dorchester restaurant -- an allegation that was not raised at the trial.
A 1987 report to the Supreme Judicial Court, which was not introduced at trial, notes the way the judge would exert his hiring authority without the input of his chief probation officer.
"Judge King has exercised full authority for the hiring and promotion of all personnel in the probation department," said the report. "He has ignored recommendations for both the hiring and promotion of probation personnel by a screening committee..."
According to the defense point of view, the patronage hiring by O'Brien merely replaced patronage hiring by the judges, and patronage never trumped the need to hire qualified people for the posts.
Patronage and the manipulation of hiring are issues that harken back to a seminal time in Massachusetts politics. James Michael Curley, the beloved and reviled former mayor, governor and congressman, became the first state representative arrested on criminal charges and was later convicted of fraudulently taking a civil service exam for someone who wanted a job as a letter carrier, according to the account in Jack Beatty's 1992 biography.
The base of the so-called Mugwumps, who wanted to reform government hiring and do away with patronage around the turn of the twentieth century, was located in Massachusetts, according to the book.