Aram Boghosian for The Boston Globe
The litany of crimes that independent counsel Paul F. Ware Jr. alleges - and often flatly asserts - that Probation Commissioner John J. O’Brien and his top deputies committed provides a detailed road map for prosecutors to pursue criminal charges that could possibly result in jail time, former prosecutors said yesterday.
Some attorneys said a recent US Supreme Court decision limiting the use of an anticorruption law favored by federal authorities would make it difficult to win a conviction on the most serious fraud charges. But veteran criminal lawyers praised the detailed case sketched by Ware and said the voluminous evidence would be difficult for US Attorney Carmen M. Ortiz and state Attorney General Martha Coakley to ignore.
“The most amazing thing about this [report] is the tone and candor of it,” said Allison D. Burroughs, a Boston defense attorney and former federal prosecutor. “In every aspect of government, I think it matters who you know, so I bet there’s a lot of people all over the government who are hitting the panic button.”
Ware’s reports cites potential crimes including wire and mail fraud, bribery, conspiracy, perjury, conflict of interest, and illegal solicitation of campaign funds. One former federal prosecutor said there may be enough evidence for a federal racketeering case using a statute commonly used to target organized crime.
Ortiz, through a spokeswoman, declined to comment. Coakley said in a statement that her office had begun “thoroughly reviewing the information to determine what action our office will take going forward.”
A spokesman for Suffolk District Attorney Daniel F. Conley, whom Ware suggested should review campaign finance violations, said his office is “ready to review and take appropriate action on any allegation referred to us.”
Ware cited six potential criminal targets: O’Brien and deputies Francis M. Wall, Patricia Walsh, William H. Burke III, Elizabeth V. Tavares - all closely implicated in the rigged hiring - and Christopher J. Bulger, the department’s legal counsel.
He did not find clear proof of specific legislators soliciting campaign contributions in exchange for jobs, but described statistical evidence that such a pay-to-play system may exist, possibly in violation of state and federal bribery statutes. Ware also said he did not fully investigate possible wrongdoing within the state treasurer’s department, where O’Brien’s wife received a job, a more desirable post than the one she was originally considered for, after 34 probation employees donated $4,000 to Treasurer Timothy P. Cahill in a single day.
While elected officials would be harder to prosecute with the evidence Ware compiled, some legal observers said the overwhelming case against O’Brien might compel the commissioner to seek a plea agreement in exchange for testifying against legislative leaders.
As a blueprint for federal prosecution, Ware pointed to a Chicago patronage case where three aides to Mayor Richard M. Daley’s administration kept a list of 5,700 candidates and their sponsors. As in the Massachusetts Probation Department, officials conducted sham interviews and faked the scores of favored candidates. An appeals court upheld their fraud convictions, finding that “the defendants arguably cheated the city out of hundreds of millions of dollars” through salaries fraudulently obtained and job opportunities fraudulently denied.
Rejection letters and phone calls to candidates who lacked political sponsors or e-mails exchanged between probation officials, could trigger the mail and wire fraud statutes, said Brad Bailey, a defense attorney and former federal prosecutor.
But some former prosecutors said that the Chicago decision came before last summer’s US Supreme Court ruling in a case involving Enron, which made federal fraud convictions more difficult unless prosecutors can prove defendants accepted bribes or kickbacks.
Although Ware makes an argument that O’Brien may have committed bribery, the Supreme Court ruling has “caused prosecutors to at least pause,” said Stephen G. Huggard, former head of the public corruption unit of the US attorney’s office. A state prosecution, he said, might be more promising.
Whatever state and federal authorities decide to do, Ware has made their jobs immeasurably easier with many hundreds of pages of testimony pointing to a possible quid pro quo between legislators and probation officials, lawyers said.
Regional Supervisor Ellen Slaney, for example, testified that O’Brien said, “These appointments were important to his being able to accomplish the budget that he needed in order to do our business.”
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