A federal judge denied Monday a request by John J. O’Brien, the former state probation commissioner, for appointment of two specific lawyers to represent him at government expense.
The judge left the door open, however, to using taxpayer dollars for his defense, according to court documents.
The charges against O’Brien and against Elizabeth V. Tavares and William H. Burke III, former state Probation Department officials, include racketeering conspiracy and mail fraud. O’Brien and the others are accused of running a rigged hiring and promotional system that rewarded those with political connections.
US Attorney Carmen M. Ortiz announced criminal indictments against the three on March 23.
In April, O’Brien submitted a motion asking US Magistrate Judge Timothy Hillman to approve the use of public funds to pay for Paul Flavin of Milton, his longtime lawyer who has represented him in state hearings, and Anthony M. Traini of Providence, whom Flavin wanted on his team because of Traini’s expertise in federal white-collar crime cases. Neither lawyer is on an approved list of federal defenders.
Hillman denied the request in documents filed in US District Court Monday,
The judge said that O’Brien, if he turns out to be eligible, must instead use federal public defenders or someone from a list of private attorneys who do court-appointed federal defense work.
“I understand and appreciate that these charges are life-altering and exceptional to O’Brien and his family, but under the present circumstances, I cannot find that exceptional circumstances exist which warrant” the government paying for the lawyers specifically requested by O’Brien, Hillman said.
Flavin and Traini did not immediately return calls for comment. O’Brien could not immediately be reached for comment Monday night.
While denying the request, Hillman noted that he would consider an application for court-appointed counsel if O’Brien chose to submit one.
Under the federal Criminal Justice Act, criminal defendants in federal court in Massachusetts who do not have the means can get representation from either the federal public defender office or private attorneys who have offered to serve on a Criminal Justice Act panel.
In some instances, the court will allow for the appointment of counsel who is not on the panel. However, Hillman said that O’Brien does not meet those circumstances.
The judge also pointed out that in a midcase appointment, the Criminal Justice Act does not require that the lawyer previously obtained be assigned, “particularly when retained counsel should have had an inkling concerning the defendant's financial circumstances before he agreed to represent the defendant.”
Hillman said the public defender office is capable of handling complex criminal cases and noted that the panel members must meet minimum standards, including having at least five years of experience as a bar member, having enough experience to provide “high-quality representation,” being familiar with court rules, procedures, and statutes, and being in good standing.
Ortiz’s office declined to comment on the matter.Milton J. Valencia of the
Globe staff contributed to
this report. Martin
Finucane can be reached at
Amanda Cedrone can
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