After 35 days of testimony, 60 witnesses, and more than 207 exhibits, it came down to this:
With a federal jury listening closely, federal prosecutors sought to portray three former Probation Department officials as corrupt public servants who hijacked their department’s hiring process for their own political gain and who bribed legislators with jobs for legislative favors.
But defense attorneys insisted that former commissioner John J. O’Brien and his two top deputies simply played the game of political patronage, the game of Beacon Hill, telling the jury that the case was about a power struggle, not a federal crime.
“This is a mudslinging operation, this is throw everything but the kitchen sink against these people and see if you can fool the jury into thinking this . . . amounts to a criminal offense,” defense attorney John Amabile told jurors.
Assistant US Attorney Karin M. Bell argued that the case boiled down to corruption, that the defendants committed “fraud against the Trial Court . . . fraud against the Commonwealth.”
“Whatever you think of it, it’s not patronage,” Bell told jurors. “It is fraud and bribery, and fraud and bribery are not business as usual in Massachusetts.”
For four hours Tuesday, both prosecutors and defense lawyers made passionate final arguments to the jury, laden with accusations of corruption, political influence, scapegoating, and coverups. There were loud accusations of government overreach, quiet pleas for common sense, and even references to Tom Brady and Bob Dylan.
“Couldn’t help but make me feel ashamed to live in a land where justice is a game,” defense attorney Stellio Sinnis said, quoting Dylan’s song “Hurricane,” a protest of the wrongful imprisonment of a man accused of murder.
O’Brien, the commissioner from 1998 to 2010, and top deputies Elizabeth Tavares and William Burke III face accusations that they ran the Probation Department like a criminal enterprise, trading jobs to the friends of state legislators. In exchange, prosecutors said, legislative leaders protected O’Brien’s budget and regularly gave him spending increases, creating more jobs. Prosecutors say O’Brien also sought legislation that would have expanded his powers and boosted his pension, though the legislation was never passed.
The defendants are charged with racketeering conspiracy, mail fraud, and racketeering with underlying allegations of bribery, mail fraud, gratuity, which alleges a reward to a legislator for an official act.
Prosecutors say the agreement with legislators helped O’Brien build his political clout as head of an agency where jobs could be bought. Prosecutors called the jobs “political currency.”
“Instead of hiring the most qualified candidates, they hired the most politically connected ones,” Bell said. “And then they covered it up.”
For nearly two hours, Bell wove a narrative from the testimony that began May 8: Legislators would pass names of preferred candidates to O’Brien, who created a “sponsor list.” When the department was hiring, he consulted the list and gave the names to his representatives who served on hiring panels to make sure the preferred candidates advanced to a final hiring round.
Government witnesses said O’Brien would then tell his representatives how to score candidates so that he could hire them and make it appear as though a proper process was followed. He then certified documents attesting to that.
“Every time Jack O’Brien signed that line, it was a lie,” Bell said. “He knew it was false, because from the beginning he never had any intention to hire on merit. Why go through the system? Why post the position?”
Bell went through some of the hires made over more qualified candidates that the government has alleged: A job for the drug-addicted son of a judge, who left a previous public service job because of ethical violations and who scored poorly in an initial interview. He was sponsored by Senate President Therese Murray and was hired.
Murray sponsored other candidates including a campaign volunteer who wanted to boost her pension and the daughter of a State Police detective who had been recommended by District Attorney Michael O’Keefe.
Other hires included the girlfriend of state Senator Mark Montigny of New Bedford, who also pushed for a job for a former drug addict who had served jail time.
“I’m getting tremendous pressure from [Montigny],” O’Brien had complained, one government witness said.
Defense lawyers argued that prosecutors never showed that the candidates were not the most qualified, and they said O’Brien had the discretion to decide who was the most qualified.
Bell also asked jurors to find that O’Brien had bribed legislators by letting House Speaker Robert A. DeLeo hand out jobs to legislators whose vote he was seeking in his competitive race for speaker in 2009. Several legislators testified that they took advantage of the opportunity and referred friends, who were hired without an interview. The legislators said they had never before received such an offer of jobs from DeLeo, though they said they would have supported him for speaker anyway.
Prosecutors allege DeLeo was part of O’Brien’s conspiracy, but he has not been charged and he has forcefully denied the allegations. US Attorney Carmen Ortiz has not said why DeLeo was not charged and has not responded to the speaker’s request to retract the allegations.
The case hinges in large part on the testimony of Robert A. Mulligan, the former chief justice of the Trial Court system who had to sign off on O’Brien’s hires. Prosecutors say he was duped by O’Brien’s coverup. Mulligan testified that he had no knowledge of the sophistication of the rigged hiring system.
Defense lawyers argued, however, that Mulligan was well aware of patronage on Beacon Hill and within the Probation Department and that he himself hired politically connected candidates for court security positions. The defense argued that the case was based more on a power struggle between Mulligan and O’Brien about hiring authority. Attorney Brad Bailey called him “Do as I say but not as I do Mulligan.”
“It can’t be fraud when everybody knows about it,” Sinnis said.
Assistant US Attorney Robert Fisher argued in rebuttal statements that there was a difference between patronage hiring and the manipulation of a merit-based system for “law enforcement jobs.”
“Would you want to be involved in this process, as a candidate?” he asked. “No one would have gotten a [fair] shake without a [legislative] sponsor because Jack O’Brien had already decided who was going to get a job.”
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