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Judge overseeing probation scandal trial won’t recuse himself

The judge overseeing the long-awaited federal trial in the Probation Department scandal said Thursday that he would not step down, despite complaints by defense lawyers that he has close ties to one of the original investigators in the case.

US District Court Judge F. Dennis Saylor IV said in a 37-page decision that his relationship with Paul Ware, a former law partner of his and one of the original investigators, was strictly professional, existed before he became a judge, and did not meet the legal threshold that would create an appearance of a conflict of interest in the case.

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He also questioned the timing of the request, on the eve of the trial’s scheduled start date. The trial has now been moved from February to March 24.

“Taking all of the factors into account — including, in particular, the timing of the motion to recuse; the general lack of relevance of Ware’s investigation to the trial of this case; and my lack of a current social friendship with Ware — recusal is not warranted,” the judge said.

Defense lawyers in the case raised another argument last week in their request to have Saylor recuse himself: They said they planned to call one or more federal judges to testify at the trial, raising the number of possible conflicts Saylor would have in overseeing the case. Saylor had initially told the lawyers to file further arguments on the issue by Friday. However, he issued his decision Thursday and said he would “modify this decision as may be necessary and appropriate under the circumstances.”

The case involves John J. O’Brien, the former Probation Department commissioner, and his top deputies Elizabeth Tavares and William Burke. They were accused in a federal racketeering indictment of creating a rigged system that hired and promoted candidates who were sponsored by state legislators, choosing them over more qualified candidates.

In exchange, prosecutors said, the Probation Department received regular, significant budget increases from legislators, helping O’Brien build political power as head of a department where jobs were for sale.

The accusations were based in large part on a Boston Globe Spotlight investigation in May 2010 into patronage in the department.

After the series, Ware, a partner at the law firm Goodwin Procter, conducted an investigation on behalf of the state trial court system that recommended charges against O’Brien and his aides.

Defense lawyers argued there would be at least an appearance that Saylor would have a conflict of interest in overseeing the case, the standard that would require the judge to step aside.

The lawyers noted that Saylor was a law partner at Goodwin Procter before he became a judge in 2004.

They also argued that prosecutors were judge shopping in bringing the case before Saylor: One of them served as the judge’s law clerk for several months when he was first appointed.

Legal analysts told the Globe in interviews that the request, however, did not rise to the standard that would force the judge to step aside, noting any relationship the judge had with Ware or the prosecutor was long before the federal investigation into O’Brien.

They also noted that the federal and Ware investigations were separate.

Milton J. Valencia can be reached at Follow him on Twitter @miltonvalencia.
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