By Andy Metzger
STATE HOUSE NEWS SERVICE
BOSTON -- Officials in the U.S. Attorney's office on Monday agreed to drop a few racketeering charges that three former state probation department officials were facing and the judge in the criminal trial nixed a prosecution theory, which lopped off a portion of the prosecution's case.
The majority of the federal job-rigging criminal case will go to the jury Tuesday afternoon or Wednesday morning.
Judge William Young nixed the argument that fraudulent hires could be considered bribery from probation officials in exchange for better treatment of the department from the Legislature.
The hiring of individuals recommended by lawmakers for electronic monitoring positions, which allegedly went through Rep. Robert DeLeo's office, remains part of the racketeering case as alleged bribery. Speaker of the House since 2009, DeLeo is not charged in the case and in recent days has lashed out at federal prosecutors.
"I believe my indignation has been well-placed and to remain silent, in the face of false accusations, would damage the office of the Speaker and the entire Legislature," DeLeo concluded in a 628-word statement issued Monday, his third statement on the case in less than a week. "The United States Attorney has chosen to try me in the press because they lack the evidence to do so in a court of law. That is simply unconscionable and unfair.
While touting his role in helping to pass hiring reforms intended to guard against patronage, a law spurred by investigations into probation department hiring, DeLeo disputed the unindicted co-conspirator label attached to him and others in the case.
"Today the United States Attorney alleged that I engaged in a criminal conspiracy," the Winthrop Democrat said. "Since a conspiracy is an agreement to do an illegal act, the question must be asked: With whom did I conspire? When did I so conspire? And what evidence is there linking me to such a conspiracy? The government cannot answer these most basic questions. This allegation is nothing more than desperate legal strategy to allow the government to admit hearsay evidence from an unreliable source."
Prosecutor Fred Wyshak agreed with defense attorneys not to push the jury to find proof that fraud was committed in the promotion of Elzy Tubbs in Barnstable and the hiring of Christopher Hoffman in Northampton.
In order for the racketeering charge to stick against former Commissioner John O'Brien or his former first deputy Elizabeth Tavares, the jury will have to find at least two of the racketeering acts were proved beyond a reasonable doubt, and were part of a pattern of crime in furtherance of a criminal enterprise.
There is only one racketeering count for both O'Brien and Tavares, and multiple racketeering acts that make up that count. The alleged racketeering acts are bribery and fraud, and only O'Brien is accused of bribery in relation to the electronic monitoring program hiring.
Young reduced the scope of the case somewhat when he determined the alleged boosting of candidates with political backing in exchange for loosely defined "favor" from the Legislature cannot be considered bribery.
"We need a verdict that will stand up here," Young said.
After Young's ruling the racketeering acts that will go to the jury were in the mid-20s as opposed to roughly 60 beforehand.
William Burke III, a former deputy commissioner who oversaw the western part of the state, faces the charge of conspiracy to commit racketeering.
Prosecutors say his involvement in the actual racketeering was outside the statute of limitations.
Though Burke is not facing any individual charges of mail fraud, he is charged with conspiracy to commit mail fraud.
Young removed Tavares from the allegation that she was part of the scheme to fraudulently give a job to Kathleen Petrolati, the wife of Rep. Tom Petrolati, as an illegal gratuity. She had not yet risen to her high rank in the department at the time of that early 2001 hire.
Tavares is charged with aiding and abetting the mail frauds allegedly committed by O'Brien.