Lashing out at prosecutors, lawyers for disgraced former Probation Department head John O’Brien asked a federal judge to order the US attorney’s office to turn over evidence in his criminal case, saying prosecutors have refused to do so even when materials could clear him of any wrongdoing.
In a sharply worded, 29-page court motion, defense lawyers also severely took issue with the nature of the charges against O’Brien and two top deputies, who are accused of racketeering for rigging the department’s hiring process to curry favor with legislators.
Prosecutors have showed no evidence that O’Brien agreed to hand out jobs for his benefit, the lawyers argued.
“The decision to use federal criminal statutes that originally were designed to crush the Mafia is breathtaking,” said the lawyers, William W. Fick and Stylianus Sinnis, from the federal public defender office. “Notably, the prosecution has never claimed that the defendants . . . did anything illegal for personal gain.
“The defendants are confident that prosecutors will be unable to prove these charges,” the lawyers said.
O’Brien faces a lengthy prison term if convicted.
According to the court motion, in November the lawyers started sending prosecutors a series of 28 itemized requests for information related to the case, including any correspondence probation officials had with legislators and any information about witnesses. But prosecutors in many cases have denied the requests, in one case citing an ongoing grand jury investigation, the lawyers said.
“The ongoing grand jury investigation cannot serve as a shield to prevent the government from disclosing information to which the defendants are constitutionally entitled,” the lawyers said.
The lawyers also took issue with prosecutors’ refusal to surrender information because it is immaterial to the case, saying, “The government cannot be the sole arbiter of relevance or materiality.”
Prosecutors have not yet responded to the defense motion.
Among other documents, O’Brien’s lawyers requested any information on communications he had with legislators, and whether O’Brien agreed to hire someone in exchange for a John O’Brien benefit.
In addition, the lawyers said, much of the information that has been turned over is incomplete: Of the 3,000 pages prosecutors seem to have received from one state senator, only 90 have been turned over to the defense. Of the more than 1,000 pages received from another unidentified senator, only 150 have been turned over.
O’Brien and his top deputies, Elizabeth V. Tavares and William H. Burke III, were indicted in March 2012 on charges of running what prosecutors have called “a rigged hiring system that catered to requests from state legislators and others to employ and promote candidates for employment.”
The Globe has reported that the investigation is ongoing and that prosecutors have looked at whether legislators committed any crimes. As part of the motion, O’Brien’s lawyers requested more information on witnesses granted immunity.
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