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O’Brien seeks dismissal of charges

JOHN J. O’BRIEN

JOHN J. O’BRIEN

John J. O’Brien, the former head of the Probation Department, has asked a federal judge to dismiss a racketeering case against him and his former deputies, saying federal prosecutors are trying to criminalize patronage, which he called a routine affair in state politics.

O’Brien and his top deputies Elizabeth Tavares and William H. Burke III were accused in a sweeping racketeering indictment of running a “rigged hiring system” that hired and promoted friends of state legislators. But lawyers for O’Brien argued that the officials received no money and did nothing wrong.

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In their court filing Wednesday night, the lawyers quoted US Attorney Carmen M. Ortiz, who said in a March 2012 press conference that “patronage in and of itself is not illegal.”

Lawyers for O’Brien argued in a 58-page court motion: “The court should repudiate the prosecution’s deployment of federal criminal statutes to second-guess officials and micromanage state politics.

“This is not a case about political corruption,” they said. “Rather, this is a prosecution that would criminalize both patronage as well as the ordinary and necessary give-and-take of politics itself.”

Prosecutors did not immediately respond to the filing. A trial is scheduled for late February. The charges were based in large part on a Globe Spotlight Team investigation in May 2010 that found questionable hiring practices and cronyism within the Probation Department. An independent investigator later recommended that charges be filed against O’Brien and his deputies.

O’Brien, who was appointed commissioner in 1998, resigned amid a federal probe in late 2010.

The federal indictment alleges that O’Brien and his deputies set up a sham hiring practice and bypassed better qualified candidates to employ the friends of legislators, who in turn passed favorable spending packages for the Probation Department.

Lawyers for O’Brien noted that the former commissioner never received any monetary benefits for his hiring decisions, and that there was no proof that better qualified candidates were bypassed.

They also argued in the court motion that prosecutors, left with little evidence to bring honest services fraud charges, instead filed broad, vague racketeering charges that are typically used to target significant criminal enterprises.

“These statutes . . . were never intended to reach political horse-trading, a practice that has long existed and is still tolerated, even openly embraced, at the highest levels of the state and federal government,” the lawyers argued.

Milton J. Valencia can be reached at MValencia@ globe.com. Follow him on Twitter @MiltonValencia.
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