It’s time for US Attorney Andrew Lelling to walk away.
A few weeks ago, a federal judge issued a blistering and well-deserved rebuke of Lelling’s office, setting aside the convictions of two former Boston officials found guilty of extortion for trying to push organizers of the Boston Calling music festival to hire union workers.
The case, as you may recall, alleged Tim Sullivan and Ken Brissette threatened to withhold permits for the 2014 music festival on City Hall Plaza unless organizers hired some union workers. Attorneys for the two men argued that they had only wanted to work with Boston Calling to avoid a disruption by union protesters, and never threatened to pull the permits. The men neither sought nor received any personal benefit — kickbacks, for example — as a result of the union hires. (Those workers put in their hours and earned a total of $8,000.)
The case, originally brought by Lelling’s predecessor Carmen Ortiz, was a stretch to begin with, particularly after a 2016 US Supreme Court decision greatly narrowing the definition of public corruption.
Some of us may not like employees of the mayor, a former labor boss, going to bat for unions, one of his most important constituencies. But that’s politics, and not illegal, according to that unanimous US Supreme Court decision. If voters think Walsh’s city hall is too tight with unions, the way to fix that is via the voting booth, not in a federal courtroom.
But after Judge Leo Sorokin threw out the case in 2018, Lelling appealed, and proceeded with the prosecution. A jury convicted Sullivan and Brissette in August.
In vacating those convictions, Sorokin found that Lelling’s prosecutors had not only failed to prove their case under the law, but that they had used sloppy and unethical tactics to sway the jury.
Prosecutors unfairly put before the jury “prejudicial and irrelevant evidence that substantially undermined the fairness of the trial,” Sorokin wrote. “And, in its closing argument, the government disregarded clear written rulings of the Court, misstated the law, mischaracterized the evidence, and invited jurors to convict the defendants based on theories the Court had expressly ruled out of the case.”
Other than that, Mrs. Lincoln?
What’s more, Sorokin found that prosecutors had withheld a key piece of exculpatory evidence until just before the trial — the transcript of an interview with a Boston Calling official which undermined claims that Sullivan and Brissette had made any threats.
This is serious stuff. There are strong rules governing prosecutors’ handling of evidence, especially when it might harm their case: With their great power, prosecutors also have great responsibility to ensure fair play. Prosecutorial misconduct undermines faith in the entire judicial system.
It also threatens Lelling’s reputation.
But he’s also prone to overreach that seems awfully close to grandstanding. He indicted state judge Shelley Joseph for obstruction of justice last April after she apparently allowed a defendant in her courtroom to elude immigration agents. “You don’t get to pick and choose the federal laws you follow,” proclaimed Lelling, who was appointed by … President Donald Trump.
If Joseph’s actions deserve consequences, there are effective avenues in which to seek them, avenues that stop short of a sledgehammer federal prosecution that undermines the independence of the judiciary — the state’s Judicial Conduct Commission, for example. But the Trump administration wanted to set an example, and Lelling was more than willing to oblige.
Similarly, Lelling reached into the discussion on safe injection sites in Massachusetts, which allow addicts to use opioids more safely, under supervision. Lelling vowed to prosecute anybody trying to open a pilot program in Massachusetts.
Doesn’t he have enough to do without reaching into such things?
Lelling would do well to resist the urge to make a splash in the deeply problematic Boston Calling case. He has until March 13th to decide whether to appeal. He ought to cut his losses and walk away.
He doesn’t have to make a federal case out of everything.