By Andy Metzger


BOSTON -- In 2007, when he was House majority leader and vying for the speakership, Rep. John Rogers of Norwood "took a walk" and skipped a vote on a fiscal year 2008 budget override because he believed "probation was being treated as a sacred cow due to its hiring practices," according to prosecutors aiming to prove a case against three former probation officials.

Rogers in January 2009 conceded in his bid for the speaker as Rep. Robert DeLeo rose from the budget-writing House Ways and Means Committee to the top position in the House, which he still holds.

U.S. District Court Judge William Young told lawyers in the case Monday morning he didn't think Rogers "adds much," while suggesting prosecutors could call to the witness stand three representatives who had conversations with DeLeo's office about probation jobs.

Federal prosecutors are under pressure to finish their presentation of evidence that hiring processes were subverted to ensure people with political backing received jobs. Though Young will rule Monday afternoon on a motion to reconsider the timeframe, the prosecution presently has less than five hours left.

In an argument for more time, prosecutor Robert Fisher laid out an "offer of proof" detailing the remaining witnesses the prosecution plans to call and what they will say.


Former Probation Commissioner John O'Brien and two of his former deputies, Elizabeth Tavares and William Burke III, have pleaded not guilty, and their lawyers have said much of the supposed evidence of wrongdoing is mere coincidence.

"What's missing from any of this evidence is anything even at the wink-and-nod level," argued O'Brien's attorney William Fick.

The judge was more receptive to hearing from additional House members who were given an opportunity to recommend candidates for jobs in the electronic monitoring program. Prosecutors claim O'Brien gave 10 electronic monitoring jobs to DeLeo, of Winthrop, to dole out to legislators to help in his ultimately successful campaign to succeed former House Speaker Salvatore DiMasi of Boston.

According to the prosecution, Rep. Kevin Honan of Brighton will testify that in April or May of 2008, he received a call from Leonard Mirasolo, who was then an aide to DeLeo, asking if he had a candidate for a job in the court system. Honan said his aide Gavin Flanagan was interested in a position, and in May Flanagan was hired as an electronic monitoring coordinator, according to prosecutors.

Rep. David Linsky of Natick received a similar call from Mirasolo around April 2008, and the Natick Democrat gave the name of his former campaign manager Richard Philben, who was hired in May 2008 without an interview, according to prosecutors.

Rep. Michael Moran of Brighton also received a call from Mirasolo, and gave the name of Kenneth Weiand, who had worked on his campaign, according to prosecutors. Weiand was hired two days after he applied without an interview.

According to Fisher, former Chief Justice of Administration and Management Robert Mulligan asked Rep. Garrett Bradley in 2005 to file a budget amendment that would preserve Mulligan's authority to transfer funds in and out of the probation.

Bradley, who was House vice chairman of the Judiciary Committee, was told by former House Judiciary Chairman Eugene O'Flaherty that leadership did not support the amendment, according to Fisher. The amendment failed, and Mulligan lost transferability in the fiscal year 2006 budget.

"Like many other legislators, Bradley claims that even though he was Vice-chair of the Judiciary Committee, he was not made privy to most decisions made by the House leadership," Fisher wrote.

Young was also skeptical that Bradley would add anything.

Prosecutors, who have periodically adjusted their witness list as the trial approaches its conclusion, have been steady in their plans to call House counsel James Kennedy and DeLeo aide Toby Morrelli. 

A former aide to former Speaker Salvatore DiMasi and Rep. Dan Bosley, Kennedy was counsel to House Ways and Means when DeLeo was chairman and starting in October 2011 he has served the dual roles of counsel to the House and to the speaker, according to Fisher.

According to Fisher, Kennedy attended a September 2007 meeting with DeLeo, Mirasolo and DeLeo chief of staff James Eisenberg, where O'Brien and former probation legal counsel Christopher Bulger laid out a reorganization of the trial court, limiting Mulligan's ability to object to O'Brien's appointments, giving O'Brien authority over setting salaries and linking his own salary to Mulligan's. The proposal would also restrict Mulligan from disciplining O'Brien.

While Kennedy was "critical" of the proposals and deemed several as unconstitutional, Fisher argued the timing of the meeting and extent of O'Brien's request help demonstrate O'Brien's belief in a quid pro quo.

"[T]he brash nature of O'Brien's legislative request is important proof of the underlying racketeering conspiracy because it shows the true character of the relationship between O'Brien and Chairman DeLeo," Fisher wrote. Fick dismissed the timing of the request, occurring between two hiring rounds where DeLeo's office was allegedly involved is a "coincidence in time."

Morelli met with DeLeo and staff regarding the fiscal year 2006 budget, when House Ways and Means restricted Mulligan from transferring funds in and out of the probation budget.

Young also challenged the prosecutors why they believe lobbying from the probation department and making concessions to the Legislature was improper.

"You're talking as though this is the only state agency that engages in that. I suggest to you that's not so," said Young. He said, "You want to take on in this indictment the entire patronage culture..."

Fisher agreed that other state agencies may engage in similar practices but said the probation officials stepped "over the line."

The trial will resume Tuesday after Monday afternoon's hearing.