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O’Brien lawyers spar over use of ‘rigged,’ ‘sham’

Urge that terms be avoided at his trial

Former Massachusetts Probation Department head John J. O’Brien.

Ted Fitzgerald/The Boston Herald, pool

Former Massachusetts Probation Department head John J. O’Brien.

With the trial scheduled to start in early May, attorneys for both sides in the corruption case against former state probation commissioner John J. O’Brien are trying to shape the evidence to be presented to a US District Court jury.

In a series of motions filed Monday, O’Brien’s defense lawyers and prosecutors in US Attorney Carmen Ortiz’s office disagreed on whether, or how, jurors will hear the words “rigged” and “sham.’’

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O’Brien’s lawyers asked US District Judge William G. Young to prevent any witness from uttering those two words.

O’Brien and his top deputies Elizabeth Tavares and William Burke are charged with racketeering for allegedly running an illegal hiring scheme, favoring candidates who were sponsored by state legislators over more qualified candidates.

In exchange, prosecutors say, the legislators routinely boosted the Probation Department budget. O’Brien and his two aides have pleaded not guilty to all charges.

“These conclusory words are not based on personal observation and are inadmissible opinion testimony that usurps the jury’s role in deciding the ultimate issue,’’ according to O’Brien’s lawyers.

“Judgment-laden terms like ‘sham’ and ‘rigged’ are unhelpful: the crime charged is not conducting a ‘rigged’ or ‘sham’ hiring process; it is violating specific federal statutes,’’ the defense wrote. “The jury is not called to decide whether the hiring process was a ‘sham’ or ‘rigged.’ ”

Separately, Ortiz’s office wrote that O’Brien is being charged with the very concept the defense wants to keep jurors from learning about.

“This case is not about plain vanilla patronage hiring; it is not about writing a letter of recommendation; and it is not about serving as a reference,” prosecutors wrote.

Instead, prosecutors asserted, the key issue “of this case . . . is that the defendants engaged in bribery and fraud — via a rigged hiring process designed to conceal the fact that hiring within the Probation Department was based not on merit, but political connections.’’

In a second request filed in court, O’Brien’s lawyers asked Young to block prosecutors from playing a voicemail from 2000 that was kept for more than a decade by a now-retired probation supervisor.

In the voicemail, according to a report by the SJC, probation’s personnel director told the supervisor that O’Brien would remove anyone who did not want to follow his rules for hiring people.

The defense said the voicemail is too old to be of legitimate use against O’Brien, who is accused of violating hiring rules from 2001 to 2010 when he resigned following a Boston Globe Spotlight report on the probation department.

“These voicemails and documents concern pre-2001 hiring, these discussions, would be irrelevant, confusing, and prejudicial. The voicemails must be excluded on relevancy grounds,’’ the defense said.

The events described in the voicemail are not part of the conspiracy charged in the indictment and cannot be admitted during the trial, the defense argued.

O’Brien’s trial is scheduled to start May 5.

John R. Ellement can be reached at ellement@globe
.com
. Follow him on Twitter @JREbosglobe.
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