The corruption trial of former Massachusetts Commissioner of Probation John J. O’Brien, as well as two of his deputies, William Burke and Elizabeth Tavares, will be in the jury’s hands tomorrow.
Today, lawyers for the prosecution and defense met in court for a charge conference and hearing on the defendants’ Rule 29 motions for acquittal. Judge William G. Young denied all three defendants’ motions for acquittal. If these had been granted, the case (either in its entirety or just some of the charges) would have simply been thrown out without ever going to the jury. Judge Young also announced his planned jury instructions. The following are among the things he plans to tell the jury:
- The burden of proof is with the prosecution and never shifts to the defense.
- Verdicts on each count must be unanimous.
- Special scrutiny should be given to witnesses who were part of the alleged conspiracy or received immunity.
- Participating in the political process is encouraged, and campaign contributions are protected by the First Amendment.
- Neither the indictment, nor the behavior of the attorneys or judge, is evidence.
- There is “nothing criminal” about government officials from any of the three branches of government recommending candidates for jobs, or about hiring authorities keeping track of these recommendations.
- The jury should not sit as “some giant personnel board” to make decisions about which applicants were the most qualified, but merely to determine if hiring was done with complete disregard to the procedures outlined in the Trial Court Manual.
Judge Young also complimented all of the lawyers. “I think this case has been very well-tried, and I will say that [to the jury]. You’ve been doing a great job for your respective clients.”
Somewhat controversially, he called it “improper,” but not criminal, for hiring authorities to pass names of preferred candidates to those in charge of interviewing or rating candidates. “The passage of such names from a superior to a subordinate is highly improper, whether a judge does it or whether anybody else does it,” he added. However, he assured the lawyers, “standing alone, that’s not criminal.” What is criminal, and what O’Brien and his co-defendants are accused of doing, is “material misrepresentation of the fact that the procedures manual is being followed.” Defense Attorney Brad Bailey, who represents Tavares, expressed his concerns with the description of the defendants’ conduct as “improper,” but Judge Young was not swayed. Defense Attorney Stellio Sinnis, who represents O’Brien, did succeed in getting Judge Young to emphasize to the jury that “a violation of the Trial Court Manual is not criminal.”
The defendants face 8 counts of mail fraud. For them to be found guilty of these charges, it must be proven that they falsely certified through the U.S. mail that they had chosen the most qualified applicants for probation officer jobs, and that they succeeded in deceiving the Chief Justice of Administration and Management, Robert Mulligan. They are also charged with racketeering and bribery. For these charges to stick, either there must have been a concerted effort by O’Brien and Speaker Robert DeLeo to bribe specific legislators to increase the Probation Department’s funding in exchange for their relatives and friends receiving jobs, or O’Brien’s actions must have been done corruptly in hopes of receiving a benefit from legislators.
During the charge conference, Assistant U.S. Attorney Fred Wyshak pointed out that Judge Mulligan is not the only alleged victim in this case. “We think that unsuccessful applicants who relied on a fair hiring system, we think that the trial court as an institution is a victim,” he told Judge Young.
Closing arguments, as well as jury instructions, will take place tomorrow.