When a federal court yesterday reversed the convictions of three Massachusetts officials found guilty of corruption, it provided a measure of legal vindication not only for the defendants in the Probation Department hiring scandal, but also to House Speaker Robert DeLeo and his members. By tossing out the jury convictions of former Probation Department commissioner John O’Brien and his deputies Elizabeth Tavares and William Burke III, a federal appeals court blew enough holes in the case of U.S. Attorney Carmen Ortiz to show that the court agrees with DeLeo that Ortiz overstepped her bounds when applying federal corruption laws to the hiring processes of a state agency.
A three-judge panel of the federal First U.S. Circuit Court of Appeals ruled Monday afternoon that the actions of O’Brien and his associates “may well be judged distasteful, and even contrary to Massachusetts’s personnel laws,” but that the court’s function is limited to determining if they violated federal law. So they threw out the convictions.
In the ruling, the appeals panel states that “O’Brien gave DeLeo control over” some probation hires to allow DeLeo to in turn grant those patronage positions to fellow lawmakers in order “to round up votes from other legislators,” in his pursuit of the speakership. In return, the prosecution argued, O’Brien and his department received favorable budget treatment under DeLeo’s House.
“Such evidence may suffice to show that O’Brien gave the [Probation Department] appointments to DeLeo to facilitate his path to power in the state house, in the hope that, by building up a ”reservoir of goodwill“ with DeLeo, the future speaker would use his power to benefit the Probation Department’s budget. But that is only evidence that O’Brien was seeking general legislative support from DeLeo, and... that is not sufficient to show a specific public act, and with it an illegal gratuity,” the ruling states.
In a statement Monday evening, DeLeo wrote he’s pleased with the ruling and that it “constitutes a complete exoneration for this institution and all of its members.”
“It is unfortunate that for six and a half years other legislators and I have lived under the cloud of suspicion of having been involved in illegal activity,” DeLeo wrote, going on to say the decision “affirmed what I have said for the entire period – that neither I, nor to my knowledge any other legislator had engaged in any wrongdoing.”
Government transparency advocate Pam Wilmot from Common Cause Massachusetts said that while the court found that federal law wasn’t broken, the state Ethics Commission should open an investigation into the three Probation Department officials.
“It’s outrageous that these three would get away with what they did without any kind of sanction. It makes a mockery of the public interest to cook the books on hiring and hiring unqualified people for this important public position,” Wilmot said.
The court’s opinion reports that at least one House Representative, former Rep. Robert Rice from Gardner (oddly referred to as “Eric Rice” in the court document) “testified that he received the opportunity to refer an individual for the [Probation department’s electronic monitoring] position ”a year or more“ before the Speaker’s race” and had previously recommended other candidates to the department but did not understand that the referrals were “contingent on his vote for DeLeo.” Translation: the hiring scheme was sketchy by most standards, but not enough to violate federal corruption law.
Civil liberties and criminal defense attorney Harvey Silverglate told WGBH News the reversal is a win for the defendants and for the way the Legislature operated it’s legal patronage operation.
“Maybe this will matter to the voters in the next election, but it’s not a crime. There’s a difference between politics as usual and crime. And this was in the 'politics as usual’ category,” Silverglate said.
The public exposure of a system the House would rather have remained hidden may have further political fallout if Republicans or other Democrats use it as an issue to challenge incumbent Democrats.
“It’s not so much a win when one looks at how sausages are made in DeLeo’s sausage factory. It’s not particularly pretty. It’s very good that the voters are informed about how these hiring practises have developed,” Silverglate said.
Wilmot said she is more focused on the three defendants instead of on whatever patronage DeLeo may have had a hand in.
“The case is a reversal of what happened in the Probation Department. There were no indictments made against DeLeo or any real allegations of violating the law. It’s clear these three violated the law in my book and that’s where the most important part lies,” Wilmot said.
The reversal could be seen as a blow to Ortiz’s legacy as she prepares to exit the her role as the state’s top federal prosecutor next year, opening the position for an appointee of President-elect Donald Trump.
