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Judge in Probation trial to recuse himself

The federal judge overseeing the upcoming trial in the Probation Department hiring scandal reversed course Thursday and took the rare step of recusing himself from the case.

Under pressure from defense lawyers, District Court Judge F. Dennis Saylor IV agreed that he has a close friendship with fellow District Court Judge Timothy S. Hillman, whom the defense wants to call as a witness. Saylor said that relationship could “open me up to the criticism that I was excluding evidence.”

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“There is certainly a realistic probability, because of my relationship with Judge Hillman, that my impartiality might reasonably be questioned,” the judge said in a 20-page ruling. “It will be easy to make the accusation that I am trying to protect Judge Hillman and difficult to dispel the doubts.”

US Attorney Carmen M. Ortiz, whose office had opposed the defense request, said in a statement that “we are disappointed at the disruption and delay of this trial that has been caused by the defense’s untimely recusal motion.”

“The court’s rulings throughout this case have been well-reasoned and based on the law,” she said. “We nevertheless remain committed to bringing this case to trial as soon as possible. This case must move forward without delay, not only because it is in the interest of justice . . . but because we must instill public confidence in the criminal justice system and limit the continued expense of taxpayer dollars.”

Lawyers for John J. O’Brien, the former probation commissioner, and two codefendants had no comment, only saying that they accepted the decision.

O’Brien and two top deputies, Elizabeth Tavares and William Burke, are charged in a sweeping racketeering indictment with running a rigged hiring and promotion system that favored candidates sponsored by state legislators. In exchange, the prosecutors say, the lawmakers routinely boosted O’Brien’s budget, helping him build his political power as head of an agency where jobs were for sale.

Lawyers for O’Brien and his deputies allege that nothing they did was illegal, even if it was political patronage. They plan to call a list of witnesses — including state judges and former legislators, they say — to show that what was occurring in the Probation Department was typical of state politics.

Saylor had rejected an earlier request that he recuse himself based on his ties to Paul Ware, the special state investigator in the case, who was a former law partner. Saylor said there was no reason to step aside because he had only a professional relationship with Ware, and he said he could remain impartial.

But defense lawyers, in a renewed motion last month, argued that Saylor should also consider his ties to Hillman. The lawyers argued that Hillman, a former state judge, was himself listed as a sponsor for job candidates and so could testify that state officials often recommended candidates.

Federal prosecutors countered that Hillman was not a key witness, and they maintained that the case was more about sponsoring job candidates.

In his ruling Thursday, Saylor seemed to take issue with the timing of the defense request for him to recuse himself, saying it came long after they learned that Hillman could be a potential witness, and after he had already issued decisions that were unfavorable to them. He questioned in open hearings whether the strategy was a ploy to delay the trial.

Saylor also questioned whether Hillman could even be called as a witness, saying defense lawyers could be using him to argue that prosecutors were selective in targeting O’Brien, or they could be seeking jury nullification — which would be prohibited and could limit his testimony.

The judge noted, however, that the defense lawyers’ characterization of Hillman as a major job sponsor “is a statement fraught with implications.”

“It seems clear that I would have to rule upon the validity of entire lines of questioning, and that in all likelihood I would limit the testimony in multiple respects,” the judge said.

“That, in turn, would open me up to the criticism that I was excluding evidence not for proper reasons, but to shield my colleague from embarrassment,’’ he said. “That issue at the very least raises a serious possibility that recusal may be appropriate.”

Saylor announced his decision from the bench in a hastily scheduled hearing Thursday. He also used the session to explain his reason for criticizing a defense attorney during a testy hearing last week.

Saylor had lashed out at Stellio Sinnis, who he complained had interrupted him numerous times, and he said Thursday that he let his frustration with recent developments in the case lead to the outburst.

“Over the last couple of months I have been unhappy with a number of things in the case,” the judge said, citing what he called “discourtesy and disrespect” toward him and prosecutors.

“All of that was background to what proved to be a contentious hearing,” he said. “I am sure I’ve growled at lawyers from time to time, but I hardly ever raise my voice.”

A new judge had not been appointed Thursday.

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