US seeks testimony from ex-probation chief in new probe
Prosecutors thought to be focusing on role of Beacon Hill politicians
Federal prosecutors are pressuring disgraced former state probation commissioner John J. O'Brien to testify in a renewed investigation likely to focus on politicians who took part in the illegal hiring scheme he once ran, according to two people briefed on the probe.
O'Brien, who is appealing his 18-month prison sentence for his role in the patronage scandal, has been subpoenaed to testify before a grand jury about his former agency's rigged hiring system, which funneled jobs to politically connected candidates, the people briefed on the investigation said. Both asked for anonymity because the probe is secret.
It is not clear which Beacon Hill politicians might be targeted in a new probation investigation. Though the US attorney's office did not seek indictments against legislators, it named numerous politicians, including House Speaker Robert A. DeLeo, as "unindicted co-conspirators" in the scandal. DeLeo denied wrongdoing.
It appears O'Brien won't testify willingly about his probation dealings on Beacon Hill, the two people said — so prosecutors will have to seek immunity for O'Brien in order to force him to appear. Under a grant of immunity, he could not be charged with additional crimes that may come to light during his testimony. He could, however, face perjury charges if he lied to the grand jury.
Paul Flavin, a longtime friend and former lawyer of O'Brien, said prosecutors are going too far.
"Certainly it's enough already. The gentleman has been put through the ringer," said Flavin. "I don't know what their objective is."
O'Brien and two top aides were convicted of racketeering last July after prosecutors alleged that O'Brien ran the Probation Department from 1998 to 2010 like a criminal enterprise, directing jobs to candidates endorsed by legislators in exchange for legislative favors — in effect, bribing politicians.
O'Brien had argued that he did nothing criminal, but only engaged in political horse-trading common on Beacon Hill.
His supporters, asked about a renewed push by prosecutors, said they do not believe O'Brien knows anything that could help convict lying politicians.
But prosecutors have already argued at O'Brien's trial that O'Brien used the lure of job openings in the department to help DeLeo win election as speaker of the House.
DeLeo responded sharply: "The United States attorney has chosen to try me in the press because they lack the evidence to do so in a court of law. That is simply unconscionable and unfair."
A key government witness, a former legislative liaison at the Probation Department named Ed Ryan, testified that O'Brien told him in 2008 to run all hires for a new electronic monitoring program past a top aide to DeLeo, who was then chairman of the powerful House Ways and Means Committee.
Ryan said that O'Brien told him that he was offering jobs to help DeLeo become speaker in a race with fellow Democrat John Rogers.
The electronic monitoring program, designed to track criminal defendants with electronic ankle bracelets, was created with funding from the Ways and Means Committee, Assistant US Attorney Fred. M. Wyshak Jr. told the jury during O'Brien's trial. An aide to DeLeo then called legislators telling them the jobs were available if the lawmakers supported DeLeo's then nascent bid for speaker, Wyshak said.
"We have always believed there is a direct quid pro quo for these hires," Wyshak told the federal judge presiding over the trial.
Federal prosecutors have previously tried to implicate politicians in the scandal, even bringing former House speaker Salvatore F. DiMasi from federal prison in Kentucky to testify before a grand jury in 2012.
But DiMasi, serving an eight-year prison sentence in an unrelated corruption case, told friends that he did not provide significant information about legislators' involvement in the rigged hiring despite five hours of testimony.
Now, Wyshak may want O'Brien to help him prove that politicians made false statements during the investigation or prosecution.
O'Brien friend Flavin said he does not believe O'Brien ever made any such explicit agreements.
"The whole basis of the issue has been patronage," he said. "It's a systemic culture in the Commonwealth. No one ever says "You do this, I'll do that." It doesn't happen. They seem to believe that's what happened."
According to people who have been briefed on the new probe, the statute of limitations on any crimes that may have taken place during O'Brien's 12-year tenure will expire in May.
As a result, any new charges would probably be related only to false statements made more recently during the grand jury probe and trial.
DeLeo's office released a statement yesterday saying that the speaker had no reason to fear. "Speaker DeLeo's statements have all been truthful and cannot be contradicted because he never testified before a grand jury or at the probation trial," said DeLeo spokesman Seth Gitell
Despite the allegations, DeLeo's power has not diminished. Last month, he successfully persuaded his colleagues to eliminate the term limits he championed when he became House speaker.
O'Brien and his two former deputies, Elizabeth Tavares and William Burke III, have appealed their convictions. Three days before O'Brien and Tavares were to report to prison, the appeals court issued a stay of the sentence while the appeal is being heard. Tavares was sentenced to 90 days, while Burke was given one year's probation.
In its order allowing O'Brien and Tavares to remain free, the Appeals Court chief Justice Sandra Lynch and two other judges wrote, "Based on material presented by the parties, the court is persuaded of a sufficient probability that the appeals present a "substantial question."
Neither O'Brien's lawyer, Stellio Stinnis, nor a spokeswoman for the US attorney's office, returned phone calls seeking comment.