The prosecution of John O’Brien and his co-defendants Elizabeth Tavares and William H. Burke seems to have taken a new turn. The Court of Appeals is having a little trouble with it and well it should. It seems it doesn’t want O’Brien and Tavares to have to do their sentences prior to their appeal being heard. So it stayed their sentences until then. That’s good news for the O’Brien team but even better news is that one of the best if not the best criminal defense lawyer in Massachusetts, Martin G. Weinberg, has joined their team.
Their prosecution was one of the strangest in the annals of American criminal law. It could only have happened in a U.S. Attorney’s office that lost its way a long time ago. That was shown by the Caswell Motel and Aaron Swartz case among others.
You might remember that John O’Brien engaged in the age-old game of patronage. O’Brien was the Massachusetts commissioner of probation. He got his job after working in the probation department for many years, having his work recognized, and being picked for the position by a judge who knew O’Brien, happened to like him, and thought he would do a good job. Some would suggest O’Brien’s hire was a patronage hire; others would point to the job he did and say the judge made a good hire patronage or not.
Under O’Brien the probation department operated quite well if you measure it by the happenings in the real world. As I understand probation, its job is to help people who have gotten themselves involved in criminal activities to change their ways. I’d suggest one way, and probably the best way, to judge this is to look at the crime statistics in the state. While O’Brien was in charge of the probation office each year the crime rate fell. It was down significantly by the time he was removed from his position.
O’Brien had the sole authority to appoint new probation officers and others who would work for the probation department. He set up a system to review candidates. He hired no candidates who did not have the basic qualifications necessary for the job. But he did hire a lot of people who were recommended to him by legislators, district attorneys and judges. Not all of the new hires came that way but a good proportion of them did.
The thing with hiring probation officers is it really is a subjective determination trying to figure out who will be the best one out of a group. Is the person who went straight through a 4 year college, into a masters program, and did some social work better than a person who worked as a bartender a few years, went to college at night, and did construction work? Who will best relate to people who have committed crimes? Is a person who was an alcoholic who joined AA and straightened herself out better than one who never drank? Would the former have a better understanding of the problems of criminals than the latter?
O’Brien got into trouble when a newspaper decided he should not have been hiring people who got their jobs through patronage. It highlighted a few of the people who felt hurt by the hiring process. An investigation showed O’Brien had done a lot of patronage hiring. He was removed from his position by judges who thought he should not have done this although any judge who did not know this is how life worked probably should not be judging people.
It should have ended there. But the newspaper decided it was a crime. The Boston U.S. Attorney who surrenders her judgment to that paper decided to make it into a crime.
At trial the judge said patronage was not a crime. The U.S. Attorney agreed. All the evidence that came in was about patronage. The U.S. Attorney said this was more than patronage, it was a sham hiring system. But after all isn’t that exactly what patronage is. With the blindness of zealots the prosecutors called it racketeering. The judge unwilling to recognize that patronage like a rose is still patronage even by another name did not want to go against the prosecutor. He let the jury decide with such a convoluted explanation of the law that Maimonides could not have figured it out.
The overall problem was O’Brien had the right to hire who he wanted. There was no money exchanged for any of the jobs. Neither O’Brien nor his co-defendants put a penny in their pockets. Whether O’Brien had a sham system or no system it was his decision as to who to hire, not some newspaper or prosecutor.
The Court of Appeals has taken a quick look at the case. Three judges know that to be guilty of a crime you must know you are committing a crime and if it takes a convoluted explanation to a jury to define a crime then something is wrong. The trial judge was going to have O’Brien go off to prison while he appealed; the Court of Appeals thought that was foolish. What kind of justice would it be if O’Brien did his time in prison and then the court said he was wrongly convicted?
Another thing I can’t figure is why the U.S. Attorney’s office wanted O’Brien to go to prison before his appeal was heard. It argued to the Appeals Court he should not get a stay. What is wrong with that office. I guess it finds it difficult to hide its malice. When asked to comment on the Appeals Court decision it acted like the great majority of the Florida State Seminole football players after they lost to Oregon State.