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O’Brien dictated hires, former probation lawyer testifies

‘I was somewhat taken aback’

A former administrative lawyer in the state Probation Department told a federal jury Monday that he was assigned sometime in 2007 to serve on a hiring panel, only to be told who he was supposed to hire.

“The commissioner’s choice had to receive the highest score,” Edward McDermott, who was hired as an administrative attorney, and later helped run Probation’s interstate compact functions, said he was told after taking on the hiring assignment.

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“I was somewhat taken aback, and not too happy,” he said.

McDermott said he and a deputy probation commissioner would serve on a two-
member panel, conducted interviews with up to eight finalists and made a recommendation to John J. O’Brien, the commissioner at the time. But, McDermott said, the person who had assigned him to the hiring panel — Francis Wall, then deputy commissioner — told him 10 minutes before his first interview that he had to make it look as if O’Brien’s choice received the top score.

McDermott said he would then fudge a score sheet after interviews — he called it “stretch scoring” — to favor a particular candidate.

“The candidate would be as liberally scored as possible,” he said, “so that they could receive the highest score of . . . the interview.”

McDermott said that some of the prenamed candidates were the best candidates, but “I would say it was a small percentage of the interviews I was involved in.”

McDermott was the second witness called, in the second full day of testimony, in O’Brien’s federal trial in US District Court in Boston. Prosecutors sought to use his testimony to show that O’Brien dictated the outcome of hiring and promotions within his department.

McDermott testified under an immunity agreement with prosecutors that allows him to implicate himself without fear of being charged for his crimes.

Prosecutors have charged O’Brien and his top deputies Elizabeth Tavares and William Burke III with running their department like a criminal enterprise, by hiring and promoting applicants who were sponsored by state legislators over more qualified candidates, in exchange for regular budget increases.

Assistant US Attorney Fred M. Wyshak Jr. argued during opening statements last week that the defendants went beyond political patronage by creating a fraudulent, rigged hiring system to cover up their scheme from the judges who oversaw probation hiring. Wyshak said O’Brien had essentially sold the jobs for “political currency” to boost his political clout. The defendants face up to 20 years in prison on charges including racketeering and mail fraud.

Defense lawyers argue that their clients did nothing illegal, even if it was political patronage.

US District Court Judge William G. Young said Monday during a brief argument over the introduction of evidence that he will make clear to jurors that patronage is not a crime, that prosecutors have alleged mail fraud.

“This case is not about patronage hiring; it simply is not,” the judge said.

Earlier Monday, defense lawyers used their cross-
examination of the government’s first witness to argue that the hiring process was subjective and that O’Brien’s recommended candidates were still qualified for the job.

Ellen Slaney, a longtime probation supervisor who retired as acting commissioner last year, had testified that she was told whom to recommend to the final hiring process, at times over more qualified candidates.

But she acknowledged during cross-examination that the candidates O’Brien picked also had years of experience as probation officers, or in social service.

John Amabile, an attorney for Burke, also pointed out that Slaney had only met candidates in quick interviews, which he called “speed dating,” and he argued that Slaney herself had often picked her favorite candidate before the hiring process began.

He also asked Slaney to “please find for me in that manual the definition of the most qualified candidate.”

“I don’t believe it is defined in the manual,” she responded.

Defense lawyers also sought to attack Slaney’s credibility by suggesting that she was cooperating with prosecutors to protect her pension, which is just under $90,000.

Prosecutors have named Slaney as an unindicted coconspirator in racketeering, for her involvement in the fraudulent hiring process, but she has not been charged.

Slaney said she only learned last week that she was listed as part of the racketeering enterprise.

“I was cooperating on my own, unmotivated by that all along,” she said.

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