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US rips O’Brien defense motion

Prosecutors call request baseless

In what has become a war of words, federal prosecutors lashed out at the defense of John J. O’Brien, accusing his lawyers of grandstanding in court filings as they baselessly ask for evidence in the case against the former Probation Department commissioner, who is charged with fraud.

Just over a week ago, O’Brien’s lawyers filed a sharply worded court request accusing prosecutors of withholding exculpatory evidence, which they say could help to clear O’Brien.

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In the 29-page motion, they took issue with the nature of the charges against O’Brien and the application of racketeering laws, initially created to prosecute the Mafia.

But prosecutors shot back, saying the court filing reads more like a press release and was without merit, as they ­argued that government organizations such as the Probation Department have been known to commit crimes just like the Mafia.

“The defendants used their public positions of trust and power to systematically rig the probation hiring system,” prosecutors said in court filings this week.

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.”

They face lengthy prison terms, and the Globe has report­ed that the investigation is ongoing, focused on whether legislators have committed any crimes.

O’Brien also faces state bribery charges in connection with a fund-raiser for former state treasurer Timothy P. ­Cahill allegedly held to help O’Brien’s wife get a job at the state lottery.

O’Brien’s lawyers in the federal case, Stylianus Sinnis and William Fick, accused prosecutors of withholding evidence, including any correspondence probation officials had with legislators and witnesses.

“The government cannot be the sole arbiter of relevance or materiality,” the lawyers said.

But prosecutors said they have or are turning over all documents they are required to, but they are not required to turn over materials irrelevant to the case to help the ­defense’s theories.

“The government is not obliged to assist the defendants in identifying possible theories of defense,” prosecutors said. “The defendants are also woefully short in their attempt to articulate . . . the relevant infor­mation or evidence they hope to discover in the ­requested materials.”

In one request, defense lawyers asked for information about qualified candidates who were hired by the Probation Department.

But prosecutors said they are not required to turn over that information and called the request a fishing expe­dition. They said it would amount to turning over information in a drug case about the days a suspect was not dealing drugs. Or it would amount to turning over images in child pornography cases that were not child pornography.

“These items requested represent nothing more than a fishing expedition for information that is not material to the charged offenses,” prosecutors said.

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