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In testy hearing, O’Brien lawyers ask judge to recuse himself

Lawyers for John J. O’Brien, the former probation commissioner who resigned amid a criminal investigation, urged a federal judge Friday to step aside from O’Brien’s upcoming high-profile trial, saying the judge has a personal connection to an investigator who could be a key witness.

In a contentious hearing that lasted three hours, lawyers for O’Brien and a codefendant argued that US District Court Judge F. Dennis Saylor IV should recuse himself because he was a law partner with Paul Ware, who conducted an independent investigation into patronage in the Probation Department. Ware recommended in a 2010 report that prosecutors seek criminal charges, very much the same charges O’Brien and two former deputies now face in US District Court.

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Defense lawyers also contended that it appeared that prosecutors were “judge shopping” by initially bringing the case before Saylor.

They said the fact that the case was first brought in Worcester, where Saylor was the lone sitting judge before he was transferred to Boston, and that his former law clerk is now a prosecutor in the case, create an appearance that the judge would be biased toward Ware, a basic standard requiring recusal.

“This case is about relationships and where relationships cross the line from being proper to improper,” William Fick, one of the attorneys for O’Brien, said in a hearing in federal court in Boston. “It’s a question of how that looks to the outside observer.”

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Assistant US Attorney Robert Fisher told the judge, however, that the defense team’s speculation is not enough for him to recuse himself. Fisher argued that Ware had no involvement in the federal case and would not be a material witness.

“We’re not litigating the Ware Report; we conducted our own independent investigation,” Fisher said, calling the defense request a tactic to delay the trial.

Saylor, who has had to handle a series of substantive, last-minute motions for the trial, which is slated to start Feb. 25, said he would consider the request. But he also indicated that if he continues to oversee the case he will reconsider a defense request to postpone the trial.

Friday’s hearing grew testy as Saylor sought to calm lawyers who were arguing over each other, and at one point the judge told them to settle down.

“The trial is going to be orderly,” he said. The hearing was continued to Monday.

O’Brien and his former top deputies Elizabeth Tavares and William Burke face charges including racketeering. They are accused of running a rigged hiring and promotion system that favored job candidates sponsored by state legislators, over more qualified candidates.

In exchange, prosecutors contend, the legislators regularly increased O’Brien’s budget, helping him build his political power as head of a department where jobs could be bought.

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

Defense lawyers have asked Saylor to postpone the trial at least until April, saying prosecutors have only recently turned over evidence that supports their defense that O’Brien may have engaged in patronage, but he did nothing illegal.

Stellio Sinnis, an attorney for O’Brien, argued that some documents show that other administrators within the state trial court system kept “sponsor lists” of candidates who were recommended by state legislators, including the administrators who oversee courtroom security.

Sinnis said the defense team will show that patronage was common practice within the state trial court system, but that no illegal acts were committed, especially if O’Brien’s own supervisors were doing it.

Assistant US Attorney Fred M. Wyshak Jr. argued, however, that the defense team knew about the so-called sponsor lists for courtroom security officers for two years, and so there is no reason to delay the trial. He also argued that the lists, while they could be patronage, do not rise to the level of fraud O’Brien is accused of.

“This case is about falsifying documents” to hide the rigged hiring system, he said. “The crime is the fraud, the falsifying documents.”

Milton J. Valencia can be reached at mvalencia
@globe.com
.
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