By Andy Metzger
STATE HOUSE NEWS SERVICE
BOSTON -- Facing a witness who testified to vast portions of the prosecution's case, defense attorneys in the probation trial sought to cast the former official as a fraud Thursday morning while also using him to buttress the argument that patronage hiring has been the norm.
Francis Wall said after scrutiny landed on the probation department and Commissioner John O'Brien was suspended in 2010, he conferred with a lawyer and decided to reach out to prosecutors to secure a cooperation deal.
Wall received immunity and on Tuesday and Wednesday painted perhaps the fullest picture yet in the ongoing trial of what prosecutors claim was a patronage hiring system in the probation department, fraudulently disguised as merit-based by O'Brien and two of his former deputies, Elizabeth Tavares and William Burke III.
"The prosecutors are the ones who would decide if you're going to get prosecuted for perjury," said O'Brien's attorney William Fick, who called Wall a "serial liar" Wednesday. He said, "It's certainly in your interest to say whatever they think the truth is."
"It's in my best interest to tell the truth, sir," Wall countered.
Wall, a 63-year-old father of three who worked for the probation department from about 1974 until he resigned in 2011, spent his second full day on the stand Thursday, surpassing all the other witnesses so far in the amount of time testifying.
The former deputy, who said he had vacationed with O'Brien and regularly lunched with the commissioner, told the jury that when he sat on the final interview panel hiring probation officers he would rank them in an order prescribed by O'Brien, regardless of the merits of job seekers.
Fick and then Tavares's attorney Brad Bailey attempted to impugn Wall's motives and question his recollection of events.
Wall said that around 2001, he played the role of "lookout" while O'Brien had a clandestine meeting with the House speaker, Tom Finneran, because the former Chief Justice of Administration and Management Barbara Dortch-Okara had directed O'Brien not to support legislation shifting the appointing authority from presiding judges to the commissioner.
On Thursday, Wall acknowledged Dortch-Okara's office was a few blocks away and would only say he "didn't think it was impossible" that she would happen upon them.
"Did you have walkie-talkies?" Fick asked. He asked, "Did you have a secret knock so Mr. O'Brien could hide under a table?"
Under questioning by Fick, Wall said that before the appointing authority was shifted through a law from presiding judges to the commissioner, judges and the local representatives and senators filled probation jobs through patronage. He said the judge and the local lawmaker would split the hires.
"The judge would appoint one and the other one would come from the recommendation from the legislator," said Wall, who agreed that before 2001 judges "had to politic for funds" for their court, which Fick suggested led to disparities in funding levels that was not necessarily related to the volume of cases heard in a particular court.
"In those days, patronage was rife?" asked Judge William Young. Wall said, "Yes, your honor." Young has repeatedly told the jury that patronage is not a crime.
A "sponsor list" from 1998 when judges retained appointing authority shows Sen. Stephen Brewer making a number of recommendations along with other recommendations from former Sen. Richard Tisei, now a candidate for Congress, former Congressman John Olver, former Senate President Tom Birmingham, and Warren Tolman, who was then a senator and is now running for attorney general.
Wall's father was the first assistant clerk at Dorchester District Court and Wall was hired to a temporary position at that court's probation department after playing hockey with the presiding judge, Paul King, and said the judge and his father talked about how to get him a job.
When the implication of nepotism blocked him from a permanent position at the court, Wall said, he sued and later received a job as a probation officer at Suffolk Superior Court, which is where O'Brien and other former top probation officials worked, too.
In a 1995 application for assistant chief probation officer submitted as evidence, Wall listed a Walpole address, where he said he was involved in youth baseball, and said he had worked at Suffolk Superior since 1980.
Wall did not further a defense assertion that the appointment of court officers were patronage hires made by Trial Court officials, saying he could not say for sure and remarking, "It's rumor central, but I can't give specifics."
Defense attorneys have tried to argue that the hiring of court officers mirrored the hiring of probation officers.
Though he acceded to being a "serial embellisher," discussed his roughly $77,000 pension and spent two three-and-a-half-hour days testifying against a former friend facing up to 20 years on a racketeering charge, Wall appeared to keep his composure throughout the proceedings.
He had ample preparation compared to other prosecution witnesses. Wall testified that in the past week he met with prosecutor Fred Wyshak two or three times for three to four hours, and had multiple prior meetings with the FBI and prosecutors as well as appearances before the grand jury and testimony in Attorney General Martha Coakley's case against O'Brien. The state charges for alleged bribery resulted in an acquittal.
"You're pretty loyal to that pension," said Fick, arguing that Wall was aiming to appease prosecutors in order to keep the retirement benefits. Wall had previously said he lied under oath at arbitration proceedings out of "loyalty" to O'Brien.
Bailey suggested Wall had his pension in mind when he received immunity from state prosecution, claimed that even if he was convicted of perjury for his trial appearance his pension would be safe, and tallied up the potential prison sentences that he had avoided as 75 years - though the judge struck that from the record.
"You protected your pension," said Bailey.
Under cross-examination from Fick, Wall acknowledged that he could not independently recall the circumstances of many of the allegedly fraudulent hires where he played a role, and was confusing about whether he gave any credence to an applicant's qualifications.
"I was not evaluating the person before me," said Wall at one point, saying he merely ranked the candidates as instructed by O'Brien or another probation official. Later Wall said he had graded every non-preferred candidate accurately, only ever artificially reduced one person's score and said, "We would only embellish the candidates that were preferred candidates."
Wall also said that "in some cases we did change answers" to make a candidate appear more favorable, and said it was "mandatory" that the commissioner's candidates were ranked as O'Brien determined. Wall said that even rankings that were not high enough for someone to be selected for a job were manipulated so that a subsequent hiring of that person would not seem out of place.