O’Brien trial lawyers debate whether the probation department’s hiring system was political patronage or illegal racketeering

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Attorney Jeffrey Denner, who represents former Assistant Probation Commissioner Elizabeth Tavares, speaks to reporters outside the Boston Federal Courthouse on May 8, 2014.

(SHIRA SCHOENBERG / THE REPUBLICAN)

BOSTON – Assistant U.S. Attorney Fred Wyshak on Thursday described the rigged hiring system operated by former probation commissioner John O’Brien and his former assistants Elizabeth Tavares and William Burke.

The three, Wyshak accused in his opening statement, “treated jobs as political currency.” “John O’Brien was doing a little tour de force. He wanted to build his own little government empire. He wanted to hang out with powerful politicians. He wanted to be independent from the judges who controlled his agency, ”Wyshak said.

Defense attorney Stylianus Sinnis responded that O’Brien and his colleagues hired qualified people, in part based on recommendations from political figures. He reminded jurors, as did Justice William Young, that political patronage is not a crime. “This ‘criminal enterprise’ is simply the government trying in retrospect to criminalize a normal, routine, everyday hiring process,” Sinnis said.

Lawyers for the government and the defendants presented their case on the first day of what is expected to be a two-month trial in U.S. District Court in Boston. Prosecutors allege that O’Brien, Tavares and Burke exploited a system that hired probation department employees on the basis of political ties, not merit, and then lied on hiring forms to hide this fact.

Young made it clear before the trial began that the crimes they are accused of are not hired on the basis of political preferences. Political patronage and disobedience to administrative hiring laws are not crimes, he said. On the contrary, the three are charged with mail fraud, conspiracy to commit mail fraud and racketeering according to RICO (the Law on Organizations Influenced and Corrupted by Racketeers).

To get a conviction for the RICO charge, the government must prove that the probation officers engaged in a set of crimes, in this case mail fraud or bribery, in order to promote a business to which they belonged – in this case, the probation department. The government will claim that the defendants committed fraud by certifying that the hiring was carried out according to proper procedures and based on merit. Postal fraud charges arise from the fact that the mail was used as part of the hiring process, for example to send rejection letters to applicants.

No lawmaker or judge has been indicted in this case, but the case reaches the highest levels of Massachusetts politics.

One example mentioned by Wyshak was the hiring of Patrick Lawton, whose father was a state official and judge. Lawton’s grandfather was also a judge, and his mother was a Plymouth County politician. Wyshak said Lawton was a heroin addict who lost his job in the Plymouth County District Attorney’s office. Her father contacted the office of Senate Speaker Therese Murray, a Democrat from Plymouth. Murray’s director of constituent services then turned to O’Brien’s legislative liaison. Despite Lawton’s poor performance in his job interview, probation officers ranked him among the top candidates and hired him. Lawton lost his job after less than two years after being arrested for possession of cocaine.

Wyshak said the crime was the “lies” told by O’Brien and his deputies when they participated in the rigged hiring system, then signed documents certifying that the hiring was carried out to the proper standards. They orchestrated the system, he said, in order to get money from lawmakers for the probation department budget and to advance other legislative priorities.

“This case does not criminalize patronage. What it’s about in this case is cover-up, ”Wyshak said.

Wyshak said O’Brien had the power to choose candidates and sign hires, while Tavares, in eastern Massachusetts, and Burke, in western Massachusetts, ensured that candidates chosen obtain the highest scores in interview.

Wyshak said witnesses will hear testimony about an electronic monitoring office in Springfield that was set up during O’Brien’s tenure to monitor the movements of offenders wearing GPS tracking devices. The office hired Kathleen Petrolati, wife of state representative Thomas Petrolati, a Democrat from Ludlow who influenced hiring recommendations, and Mindy Burke, daughter of William Burke. “You will hear testimonials from people saying there was no need for this office, which was created just to give these two people a job,” Wyshak said.

But defense attorneys retorted that O’Brien, Tavares and Burke are hard-working public servants who have each spent around 30 years working for the probation department and have done nothing criminal. “They haven’t received a single penny, not a penny, for anything the government says they’ve done,” Sinnis said.

Defense lawyers said all of the employees who were hired were qualified. Lawton, for example, had a law degree. Lawyer John Amabile, who represents Burke, said Mindy Burke wanted to follow her father into probation and did a good job. “Does that make him a racketeer?” Said Amabile. “My client is the happy father.” Sinnis cited several other recruits who received policy recommendations and were successful in the department.

“Jack O’Brien was commissioner for 12 years,” Sinnis said. “You show me a company in the United States that has a perfect 12-year hiring record. There is no such thing.

Sinnis said it did not take a trial to determine whether O’Brien hired people based on recommendations from influential people, including Murray, Speaker of the House Robert DeLeo and Attorney General Martha Coakley. “He did it,” Sinnis said. “It’s not a crime. It’s not illegal, and in fact, it’s smart. Recommendations are part of every hiring process.

Defense lawyers argued that what the probation officers were doing may have been political patronage, but it was not criminal. “The patronage has been business as usual in the state government of Massachusetts for as long as we can remember,” said attorney Jeffrey Denner, who represents Tavares. If the hiring system was a crime, lawmakers, judges and everyone involved should have been charged, Denner said.

“The patronage goes back to the founding of the republic,” Amabile added. “Democracy is like making sausages. It’s not pretty, but it works pretty well in the end.

The three defense attorneys provided the jury with personal information about their clients. O’Brien is a married father of three who lived in the same Quincy house for 28 years and rose through the ranks from probation officer to commissioner. Tavares is married and has a teenage daughter. She attended community college, transferred to state college, earned a master’s and law degree, and has spent most of her career in the probation service. Burke is a 70-year-old grandfather of six who has lived his entire life in Hatfield and retired in 2009 after a career in the probation department, where he started as a probation officer and became deputy commissioner for the western Massachusetts.


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