Sometimes, as Sigmund Freud is rumored to have observed, a cigar is just a cigar. Similarly, no matter how many times U.S. Attorney Carmen Ortiz’s federal prosecutors try to make it a crime, political patronage is simply politics as usual.
The feds’ ongoing effort to expand the Probation Department imbroglio into an overarching felonious racket was breathlessly reported on the The Boston Globe’s page one on October 28, in an obvious attempt to embarrass, and pressure, House Speaker Robert A. DeLeo. It is a message to the speaker, and his associates, that Ortiz and her minions will not rest until they land a bigger trophy than they’ve landed so far in the so-called “Probation Department scandal.”
This latest maneuvering from Ortiz's office is toothless. The leak of this story — that the U.S. Attorney’s investigation is still kicking and the pursuit of legislative higher-ups is in full throttle — does not change the essential truth that no crime was committed in the department’s hiring scheme. Nor is it likely that DeLeo perjured himself when he testified before a state investigator, before the investigation became federal. The leak of impounded legal materials to The Boston Globe sends the message that the feds will not rest until someone succumbs to the U.S. Attorney’s pressure to sing (or to compose, as the case may be). If somebody does eventually compose, in order to get the feds off his or her back, it will not make the supposed scandal true. Ortiz's case against state officials rests on a fundamentally flawed theory of criminality. (The State House News Service reported on Monday that Chief Justice Ralph Gants of the Supreme Judicial Court, the state’s highest court, has called for multiple investigations of how the 2010 transcript of DeLeo’s testimony before Ware found its way to the Globe, adding yet another layer of intrigue to the long-running drama.)
It is time to put the Probation Department saga to rest, at least until the federal Court of Appeals in Boston, or perhaps even the U.S. Supreme Court after that, delivers the final word as to what is and isn’t legal political practice, rather than a federal corruption felony. The courts will have to determine whether legislators who influence (or even direct) the allocation of state jobs to political supporters are committing a federal felony or, as we believe more likely, are engaging in ancient political activities. In our view, such "shady" activities will end only when the voters of Massachusetts decide, in the parlance with which state politics are often described, "to throw the bums out" at the election polls. And this is as it should be in a democracy. (Or, of course, the Legislature can make this kind of political patronage a crime, but that is, for obvious reasons, exceedingly unlikely.)
Interestingly and quite relevantly, the voters have virtually nowhere in the nation put a stop to political patronage. Indeed, even Ortiz has her job in part because she knew a U.S. senator who recommended her to a president, the same route, in fact, by which the entire federal bench was appointed.
DeLeo, according to the Globe's reporting of the leaked transcript of the Speaker’s interrogation by Independent Counsel Paul F. Ware, Jr., "appeared to be unaware of a patronage system" for hiring Probation Department employees, despite the fact that others within the department and in the Legislature testified otherwise. (Former Probation Department head John J. O’Brien and two others in that office were convicted of federal racketeering for what the Globe calls "their part in the department’s rigged hiring and promotional policies." They were given unexpectedly lenient sentences by trial judge William G. Young, and were — again, unexpectedly — granted their liberty pending appeal.)
At the time the Court of Appeals ordered them released, it gave as its reason that "the appeals present a 'substantial question' within the meaning of [the federal statute under which O'Brien and Tavares were convicted]." What this tells us is that there are a number of knowledgeable people, some in black robes, who are interested in where the line is properly drawn between state political culture and federal felony law. This is a subject that, more and more in recent years, has perplexed and challenged federal judges. Thus, the news media and federal prosecutors shouldn’t be so quick to insist that the unelected federal courts, rather than the voters, should determine who should exercise state political power over the operations and personnel of state agencies, and how that power should be exercised. (Last we checked, we still have elections of one sort or another every two years.)
And, by the way, Independent Counsel Ware – before whose investigation Speaker DeLeo is said to have lied – was at the time of his appointment by then-Chief Justice of the Supreme Judicial Court of Massachusetts, Margaret H. Marshall, a favorite go-to guy for this kind of high-profile, high-prestige assignment. She had previously appointed him, in 2002, to conduct a special investigation of Superior Court Judge Maria Lopez. Nobody has speculated that the hiring of Ware by Chief Justice Marshall, on multiple occasions, bespeaks possibly felonious favoritism, and this is precisely as it should be. Somehow, members of the state legislature, and Speaker DeLeo, are not accorded a presumption of innocence for engaging in a hiring system where favoritism arguably plays a role.
CORRECTION: In an earlier version of this piece, Silverglate incorrectly characterized the professional relationship between attorney Paul Ware and SJC Chief Margaret Marshall. That error has been repaired. Silverglate apologizes to all concerned.
Harvey Silverglate, a criminal defense and civil liberties lawyer, is the author of "Three Felonies a Day: How the Feds Target the Innocent" (2009). He is working on a follow-up book tentatively titled "Conviction Machine." He thanks research assistants Samantha Miller and Timothy Moore for their help.