O’Brien Probation Case Update: Mysteries On A Tight Ship


The twitter of @davidfrankmlw is quite busy. He’s dealing with the friends of Tsarnaev who are charged as accessories, also covering the Hernandez matters and then the O’Brien probation case. The latter case is the one I am interested in. If you want to find out what’s going on in those cases, you can’t go wrong following Dave Frank.

So far it seems there have been only two witnesses in the O’Brien case, both lawyers and both called unindicted co-conspirators. Neither one knew he had been labeled as such. Both a little bothered that the prosecutor thinks they had committed criminal acts.

Judge William Young is sitting at the O’Brien trial. He’s an old egg who brooks no nonsense. When you are before him it is time to be on your toes and to know the ins and outs of evidence. Young is highly skilled in that area having written and taught it and keeps all the lawyers under tight fetters.

You may recall during the Whitey trial I commented on how much the prosecutor Wyshak seemed to be unable to ask a proper question on direct examination resorting to leading questions. In my book Don’t Embarrass The Family I noted back then that during the trial of John Connolly the prosecutor Durham also seemed to be unable to present the witness without the leading questions. It amazed me because when I prosecuted if I went near a leading question with my witnesses the defense counsel would be all over me.

A leading question is one in which the witness pretty much adopts the prosecutors question with a yes or no answer rather than telling the story in her own words. An example would be: “Isn’t it so Mary that after you finished your fried clams at Kelly’s you went to Butch’s home and saw him standing there over the body of Sally with a gun in his hand?”  A proper question would be: “Tell us what happened after you left Kelly’s?”

In Connolly’s trial I was totally taken back at the way Durham proceeded. Judge Tauro, as skilled and hardened as Judge Young, let him continue on. The reason for that is the lawyer for Connolly did not object. You see you can ask leading questions of your witness if the other side does not object.

I mentioned during Whitey’s case that Wyshak seemed to have become what we called in the Marines “salty.” He’d take over the courtroom and act as if he set the rules and no one else. That worked fairly well in front of Judge Denise Casper who although good is still feeling her way along as a judge. I didn’t think his act would play well in front of Judge Young.

Reading the tweets from Dave Frank I see that it isn’t. He tweets: “a lawyer should never lead a witness on direct before Judge Young. If the lawyer does, expect a scolding in front of jury.” I’d have expected everyone to know that. But Judge Young apparently had to say to Wyshak: “You know what leading is. It’s a question that’s forbidden by the evidence. Suggesting the answer is improper. Do not do it.”   Frank went on to note: “Judge in Obrien probation dept trial has granted dozens of objections to AUSA Wyshak’s questions on grounds that they are leading.” 

In this trial both Judge Young and the jurors can ask questions. Judge Young reminded the jurors:  “Judge Young: Keep your eye on the ball. It’s not about whether a manual was followed or not. Its about whether there was mail fraud.” Frank went on to tweet: “Sounds like a juror had a q about a particular hire in Obrien. Judge says he wont allow it bc its uncharged conduct” Then Frank noted: “Judge Young tells jurors that their job will not require them to decide who was the best candidate for a job in probation dept.”

Now that surprised me. The indictments charges mail fraud because the most qualified candidate for the job was not hired.  Here’s the language from the indictment: “that the defendants and their co-conspirators did award employment and promotions to individuals who were solicited from and sponsored by members of the state legislature and others when those sponsored individuals were not the most qualified candidates who had applied for the employment or promotion. In so doing, the defendants obtained money and property, to wit, jobs and salaries for individuals who were not the most qualified candidates, but who had the sponsorship of a member of the state legislature or some other individual of significance to members of the enterprise.” (my emphasis) 

Even though Wyshak said the case isn’t about patronage, there’s no doubt that’s what it is all about. In following what Judge Young says  and reading the indictment, it seems to me that the case is all over for the prosecutors. Judge Young might just direct a verdict of not guilty.

A couple of sidelights. Chris Bulger the former lawyer for the probation department was in court. Prosecutor Wyshak could not resist pointing him out to the jury. Wyshak loathes and is obsessed with the Bulgers so much he believes that pointing out Chris helps his case. It’s strange but there is no reason why he would do it if that were not the case. I wonder how many times he will mention the name Bulger during the case?

Aside from that, what motivated Chris Bulger to go to the courtroom to let Wyshak throw his name into the case? There’s little he can do to help the defendants by showing up in court. I’d have thought he’d have stayed a million miles away. 

7 thoughts on “O’Brien Probation Case Update: Mysteries On A Tight Ship

  1. Matt, Why am I not surprised? Do as I say, not as I do , is their modus vivendi behind the color of the ivied brick walls.
    I am waiting for federal indictments to issue for the prosecution of Mayor Marty Walsh on charges of unlawful preferment of his own people to fill city administration posts, and the displacement of Mayor Menino’s earnest workers from those positions. These political times we live in are so simply absurd, that they must be true !!! 🙂

  2. “Doubts about the already controversial shooting of Boston Bombing figure Ibragim Todashev in Florida last year are sure to grow with new revelations about the FBI agent who shot him.”

    “On May 14, 2014, the Boston Globe identified Aaron McFarlane, 41, as the agent who emptied half his ammunition clip into Todashev. It uncovered his name by “removing improperly created redactions” in PDF files from the Florida report. Digging through public records, the newspaper discovered McFarlane had been accused of brutality—twice—while serving as an Oakland police officer in lawsuits that were settled out of court. (McFarlane and another officer were allegedly beating up someone who had already been subdued when they noticed a bystander photographing the incident. Then they attacked the bystander.)”


    1. Henry:

      As you know with the FBI there is not getting beyond the high stone wall it has erected to protect itself. Keep in mind it has investigated over 150 shootings by FBI agents and found them all to be justified. The big thing for me with McFarlane is he went out on a disability and he became and FBI agent. Is he still collecting? The problem with the Todashev shooting is the FBI should have told us what happened within hours of the incident. That it took so long and that McFarlane refused to be interviewed will always leave a bad odor. It’s the old when you first begin to deceive oh what tangled webs you leave; the FBI has got itself all tangled up in its malfunctioning protective system.

  3. In a funny way this monstrously ill-conceived prosecution resurrects the spectre of the Ancient Foe, Mayor James Michael Curley. In 1930 his patronage assured my maternal grandmother Marie MacGillivray a critically needed job at the Boston Public Library. This was a ” Constituent Service ” natural as a handshake while electioneering or a tip of the hat by any Gallant to a Lady on Boylston Street, never mind a charismatic politician like James Michael Curley.
    In 2005 two Harvard Economists published a paper, THE CURLEY EFFECT, which was speedily taken up by the Economics academicians . It supplied the … scaffold … the bones of the plot … and practice purportedly of Mayor Curley, to woo his largely Irish City constituency with largesse while simultaneously so inflaming the wealthy wasps that they would vote with their feet : effectively tilting the demographic numbers in ensuing elections in his favor as they fled his …. Fiefdom 🙂 as it were.
    The Harvardians, Edward Glaeser and Andrei Schleifer, referred to his distribution of what I jocularly referred to as ” Largesse ” , as ” Wasteful re-distribution of resources.” I wonder how my Grandmother might have styled it.
    I do not draw straight comparisons here. These are different times and different circumstances. I note though that Globe writers, among others, have severally written of Commissioner Of Probation John O’Brien’s ” Fiefdom !!! ” at Probation, and he is Boston Irish, and he is indeed charismatic in his way.
    I guess that like many I am just profoundly perplexed as to how such a case so inherently … contradictory 🙂 … in its nature could have landed before the wheat from chaff winnowing hurricane strength blasting intellect of Judge William Young. It seems an insult to his formidable powers in the Courtroom, and an abuse of the seriousness of his Good Office.

    I guess that for present we shall just have to ascribe it to … THE O’BRIEN EFFECT . 🙂

    1. John:

      The Harvardians never had much use for things Irish – in fact, I mentione the Olympian James Connolly from South Boston. He was at Harvard in the late 19th Century and wanted to participate for the US in the Olympics and asked for a leave of absence from the school to do so. It was turned down by the head guy at Harvard. He had to leave school to win a medal for the country.
      The O’Brien case is really a mockery of justice because it was brought under the RICO statute (racketeering) which was originally designed to combat the mob but by the ingenious use of prosecutors it now calls three people in the probation department without records a criminal enterprise. The predicate crime being mail fraud. Had Wyshak been around when your grandmother got a job from Curley the both of them would have been indicted with the help of Glaser and Schleifer. I’d note this about Schleifer who was born in Moscow. He got involved with the Russians and Wikipedia notes: Under the False Claims Act, the US government sued Harvard, Shleifer, Shleifer’s wife Nancy Zimmerman, Shleifer’s assistant Jonathan Hay, and Hay’s girlfriend (now his wife) Elizabeth Hebert, because these individuals bought Russian stocks and GKOs while they were working on the country’s privatization, which potentially contravened Harvard’s contract with USAID. In 2001, a federal judge dismissed all charges against Zimmerman and Hebert.[16] In June 2004, a federal judge ruled that Harvard had violated the contract but was not liable for treble damages, but that Shleifer and Hay might be held liable for treble damages (up to $105 million) if found guilty by a jury.[17]
      In August 2005, Harvard University, Shleifer and the Justice department reached an agreement under which the university paid $26.5 million to settle the five-year-old lawsuit. Shleifer was also responsible for paying $2 million worth of damages, though he did not admit any wrongdoing. A firm owned by his wife previously had paid $1.5 million in an out-of-court settlement.

      So it is fair to say he knows something about the wasteful re-distribution of resources. By the way he kept his job at Harvard.

  4. Matt, I heard on the radio that one of the juror’s questions to Judge Young, who allows jurors to ask questions in writing, was: “Are all of the prosecution’s witnesses non-indicted co-conspirators?” I believe the answer is “Yes” or “Almost all of them” including witnesses who are judges. If that is so, the jury must be incredulous. All these scores of state workers allegedly were involved in a criminal conspiracy, yet (a) none of them were aware they were breaking the law and (b) none of them received a nickel in payoffs or profits? Wyshak proposes an absurd motive: that the Probation Department officials sought increased funding from the Legislature. Scores of Legislators are involved in the budget process and they consider myriad factors to increase or decrease budgets, none of which include the agency’s hiring practices. Review the legislative record and you’ll see that funding levels at all agencies and departments had zero to do with whom those agencies/departments hired. Wyshak’s case is absurd on its face. I hope Judge Young directs a verdict for the defendants and slams Wyshak and the Feds for prosecutorial misconduct, abuse and overreach. 2. What’ the difference in the Probation Department seeking increased funding and the Department of Environmental Protection seeking increased funding. 3. No agency which receives telephone calls from Legislators ignores them. 4. All agencies welcome and consider any and all recommendations for hiring, from legislators, judges, professors, executives, civic leaders, religious leaders. 5. If Probation officials have violated some law, so have every federal and state worker involved directly or indirectly in hiring. 6. Wyshak should be pilloried.

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