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Prosecutors produced evidence late, lawyers for ex-probation chief say

JOHN O’BRIENGlobe photo/File

A federal judge on Thursday accused federal prosecutors of playing a “strategic” game that could disrupt the timing of the long-awaited trial of John J. O’Brien, the former probation commissioner accused of running a rigged hiring scheme.

US District Court Judge F. Dennis Saylor IV said he will consider a request by O’Brien’s lawyers to postpone the trial, which was slated to begin next month, after the lawyers complained that they only recently received thousands of pages of discovery, or information in the case, that could help them argue O’Brien’s innocence.

The defense lawyers said they should have received the information long ago.


“There’s no reason to produce it relatively late in the game,” the judge said. “That is a strategic one . . . to make the defense scramble in a way on the eve before trial.”

He added, “This is a bed, in my view, the government has made, and may have to sleep in.”

Saylor said delaying the trial would be “unbelievably disruptive.” He set a follow-up hearing for Tuesday.

Assistant US Attorney Fred M. Wyshak Jr. defended his office, saying that prosecutors turned over all the information as required, and he suggested that defense lawyers were exaggerating about the discovery information. He said the information that prosecutors provided showed that some witnesses may have made inconsistent statements, but that the statements did not do anything to doubt O’Brien’s guilt.

“The defendants create a paradigm of what they think this case should be, and they try to fit the facts into it,” Wyshak said.

He also said the defense lawyers were complaining about the information as a delay tactic, calling it typical of any criminal case.

“It’s the same motion, time and time and time again,” he said. “The only thing that’s different is the name of the defendant.”


O’Brien and his two top deputies, Elizabeth Tavares and William Burke, face charges including racketeering and mail fraud for allegedly running a rigged hiring scheme that promoted and hired people who were recommended by state legislators, while bypassing more qualified candidates.

In exchange, according to prosecutors, O’Brien and his aides received significant budget increases that helped build their political power as heads of the Probation Department.

They face up to 20 years in prison on some of the charges.

Defense lawyers argued in a court filing Wednesday that the prosecutors only last month turned over 7,000 documents in the case and that a preliminary review shows that some of it is exculpatory, or could be used to prove O’Brien’s innocence.

“We’re only at the tip of the iceberg,” lawyer William Fick argued Thursday, in calling for the delay in trial.

For instance, he said, one probation chief who served on an interview panel told investigators that he was never told who to hire, contradicting prosecutors’ claims that O’Brien directed people to hire his recommendations.

But Wyshak argued that the case was not built on the word of any one probation chief and that the prosecutors do not intend to call him as a witness.

“We have never alleged that every single member of the Probation epartment was involved in this hiring scheme,” he said.

Milton J. Valencia can be reached at MValencia@globe.com. Follow him on Twitter @MiltonValencia.